When Discovery Begins

When Discovery Begins

Discovery opens when the parties confer, not when the plaintiff files or serves the complaint. Rule 26(d)(1) makes the Rule 26(f) conference the event that matters and lets discovery start sooner only in a few defined situations.¹ In most federal cases, the parties must confer and plan for disclosures and discovery before they begin the discovery process.²

The conference governs both halves of the early exchange of information. It starts the period for initial disclosures, which are due by default at or within 14 days after it,³ and it unlocks the request-driven devices (interrogatories, requests for production, and depositions) that parties use to reach beyond what disclosure supplies. A timing question therefore begins with a date: fix the conference, then count forward from it.

The four subsections below take the moratorium first, then the two exceptions that carry tests of their own (expedited discovery by court order and the early Rule 34 request), and last the order in which the methods may be used once discovery is open.

The Discovery Moratorium

Rule 26(d)(1) draws the line. A party may not seek discovery from any source before the parties have conferred as Rule 26(f) requires, unless the proceeding is exempt from initial disclosure under Rule 26(a)(1)(B) or the rules, a stipulation, or a court order authorizes the discovery.⁴ The bar operates as a moratorium, a suspension of formal discovery that lasts until the conference. Filing the complaint does not end it, nor does service of process, nor does the defendant's answer, because the only event the rule names is the conference.

The rule's verb and its object fix its reach. Serving interrogatories, serving a request for production, noticing a deposition, and subpoenaing a nonparty witness each seek discovery, and the words from any source carry the bar past the adversary to everyone who might hold what the requester wants.⁵ A lawyer who may not yet ask the opposing party gains nothing by asking a bystander.

Timing is partly in the lawyers' hands, because the bar lifts at the conference itself and an early conference opens discovery early. The parties must confer as soon as practicable, and in any event at least 21 days before a scheduling conference is held or a scheduling order is due, unless the proceeding is exempt or the court orders otherwise.⁶ The attorneys of record and any unrepresented parties who have appeared share responsibility for arranging the conference.⁷

The waiting period makes sense once the way discovery runs is clear. Discovery is presumed to be self-executing: a request triggers the duty to respond, and a party who wants to resist must start motions practice.⁸ Asking is also almost invariably cheaper than answering, so the party who serves a request bears little of the cost it creates.⁹ Without a timing bar, a plaintiff could serve sweeping requests with the complaint, and the defendant would have to answer them or file a motion before anyone had discussed what the case is about. The conference reverses that order. There the parties consider the nature and basis of their claims and defenses, discuss preserving discoverable information, and develop a proposed discovery plan, which they report to the court in writing within 14 days.¹⁰ They are to try in good faith to agree on that plan, in the expectation that it will limit the open-ended potential scope of discovery.¹¹ Requests then follow a plan instead of preceding one.

Four exceptions mark the situations in which the waiting period yields, and each exists for its own reason:

1. A proceeding exempt from initial disclosure under Rule 26(a)(1)(B) escapes the bar. The parties need not confer in such a proceeding,¹² so the bar has no event to wait on.
2. Discovery that the rules themselves authorize may go forward early. The main example is the early Rule 34 request taught below, so this exception points to other provisions and supplies no standard of its own.
3. Discovery authorized by stipulation may begin early, because the parties who would bear the burden of answering have agreed to bear it.
4. Discovery authorized by court order may begin early. The standard a court applies is taught in the expedited-discovery subsection.

The stipulation route needs no judge, which makes it the simplest way around the bar. The waiting period protects the parties who would receive the requests, and they may set that protection aside by agreement.

When the other side will not agree, the party that wants early discovery must go to the court. In Am. LegalNet, Inc. v. Davis, the plaintiff moved for a preliminary injunction and sought expedited discovery from the defendants. The court began with the default, that formal discovery does not commence until the parties have conferred under Rule 26(f), and then added that courts may permit expedited discovery before the conference upon a showing of good cause.¹³ Court authorization is therefore the route when an opponent refuses to stipulate, and the next subsection takes up what the showing requires.

Two errors recur on exams. Students count the waiting period from the wrong event, treating service of the complaint or the defendant's answer as the moment discovery opens; but the rule names only the conference, so a request served between the answer and the conference is still premature in a non-exempt case unless an exception applies. Students also read the exempt-proceeding exception to mean that no discovery occurs in those cases. The exception removes the waiting period and nothing more, so interrogatories, requests for production, and depositions are available from the start of an exempt case.

Expedited Discovery

The court-order exception tells a lawyer where to go but not what to prove. Rule 26(d)(1) lifts the bar for discovery authorized by court order,¹⁵ and it does not say when a judge should grant that authorization. The test comes from decisions applying the rule. In Am. LegalNet, Inc. v. Davis, the court stated the formulation that the decisions it cited share: formal discovery generally waits until the parties have conferred, but a court may permit expedited discovery before the conference upon a showing of good cause.¹⁶

Good cause has a specific meaning here. It exists where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.¹⁷ The party seeking early discovery has the burden of showing good cause for departing from the usual procedures, and the court cited authority that expedited discovery is not the norm and that the requester must make at least some prima facie showing of need.¹⁸ The burden sits with the requester for a plain reason. The ordinary sequence already supplies a conference, a plan, and a point at which discovery opens, and an early request makes the responding party bear cost sooner than the rules otherwise require.

A pending motion for a preliminary injunction is one of the two settings the Advisory Committee singled out. A preliminary injunction is a court order, entered before the merits are decided, that commands or forbids specified conduct, and a motion for one often puts a hearing on a short timetable, so waiting for the conference can mean that the hearing arrives before anyone has gathered evidence. The Advisory Committee's note to the 1993 amendments, quoted in the opinion, says that discovery before the Rule 26(f) conference “will be appropriate in some cases, such as those involving requests for a preliminary injunction or motions challenging personal jurisdiction.”¹⁹

That language names an occasion and creates no entitlement. Expedited discovery does not follow merely because a party seeks a preliminary injunction. The court instead examines the request on the entirety of the record to date and for its reasonableness in light of all the surrounding circumstances.²⁰ One decision the court collected denied expedited discovery in part because the requests were not narrowly tailored to obtain information relevant to the injunction determination and because the plaintiff had not shown that waiting until after the initial conference would cause it irreparable harm.²¹ The limit is structural. If the motion alone were enough, any plaintiff could pair a complaint with an injunction motion and obtain full discovery at the start of the case, and the conference-first sequence would bind only those who chose not to ask for an injunction.

Courts treat good cause and reasonableness as interchangeable labels for this inquiry.²² The factors they commonly consider include, but are not limited to, the following five.²³

1. Whether a preliminary injunction is pending, which supplies the urgency that most often justifies leaving the ordinary sequence.
2. The breadth of the discovery requests, since a narrow request costs the responder little and a sweeping one costs a great deal.
3. The purpose for requesting the expedited discovery, which asks whether the information is wanted to prepare for the injunction hearing or to build the whole case early.
4. The burden on the defendants of complying with the requests.
5. How far in advance of the typical discovery process the request was made, since the earlier the request, the greater the departure from the ordinary schedule.

The factors map onto the two sides of the good-cause balance. A pending injunction, a purpose tied to the hearing, and a short advance over the ordinary schedule go to the need for speed, while breadth and burden go to the prejudice the responding party would suffer. Whatever the balance, the court keeps in every case its discretion, in the interests of justice, to prevent excessive or burdensome discovery.²⁴

The requests in Am. LegalNet show what the factors must sort. By its motion for a preliminary injunction, ALN sought an order requiring the defendants to return trade-secret and copyright-protected information that Davis had acquired through his employment at ALN.²⁵ Its discovery requests asked the defendants to identify every customer and potential customer to whom they had sold, attempted to sell, licensed, or attempted to license their products, the people they dealt with and those people's contact information, and the documents and persons with knowledge of those dealings. They also asked the defendants to identify every product they or any licensee or agent had licensed, produced, marketed, or sold, with dates, names, model numbers, and total sales in units and dollars.²⁶ The factors do not fix a result, but they show where a court would press. An order aimed at returning information acquired through employment gives requests about that information a direct link to the injunction. Requests for every customer, product, and sales total reach across the defendants' business, so the breadth and purpose factors would require the requester to explain which question at the injunction hearing each one answers.

An exam question on this rule usually gives a plaintiff who has just moved for an injunction and asks whether discovery may start before the conference. The answer turns on what the plaintiff asks for and why, as two requests of different shapes show.

The usual exam error is to treat the pending injunction motion as the whole answer when it is only the first factor. A second error is to ask only whether the defendant will be harmed at all. The question is whether the need for early discovery outweighs the prejudice, and breadth, purpose, and timing all enter that comparison.

Early Document Requests

The rules supply one exception of their own for document discovery. Rule 26(d)(2) lets a party deliver a Rule 34 request, a demand to inspect or copy documents, electronically stored information, or tangible things, before the Rule 26(f) conference.²⁸ The exception has a waiting period of its own: the request may be delivered only more than 21 days after the summons and complaint are served on a party. It also fixes who may deliver to whom. The served party may receive the request from any other party,²⁹ and that same party may deliver a request to any plaintiff or to any other party that has been served.³⁰

The exception runs both ways. In the first direction the served party is the recipient, and any other party, whether a plaintiff or a co-defendant, may be the sender. In the second, the same served party becomes the sender and may direct its own request to a plaintiff or to any other served party, so a defendant need not wait while the plaintiff gathers documents. Service is the precondition for every recipient other than a plaintiff, who by filing is already before the court.

An early request is considered served at the conference, not on the day it is delivered.³¹ That timing keeps the moratorium's protection in place, because the responding party's obligation does not begin until the parties have talked about the case and the discovery plan. It also saves the requester time, because the request is already in hand when the conference occurs and production can start soon after the plan is set.

The usual exam error is to read the exception as opening discovery generally, when its text speaks only of a request under Rule 34. Interrogatories under Rule 33 and deposition notices under Rule 30 receive no such treatment, so they remain subject to the moratorium unless a stipulation or court order authorizes them.³² The 21-day period limits the exception as well. A Rule 34 request delivered sooner than that after service, say on the tenth day, falls outside it and stays barred unless another exception applies.

Sequence of Discovery

Once discovery is open, whether because the parties have conferred or because an exception to the moratorium applies, the question becomes the order in which the parties may use it. The rules leave that order to the parties. Rule 26(d)(3) yields whenever the parties stipulate or the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice.³⁴ Among the methods themselves, no rule mandates a sequence, so a lawyer may notice a deposition before interrogatories have been answered.³⁵ The rule also settles how the parties' discovery programs relate to one another: discovery by one party does not require any other party to delay its discovery.³⁶ Each side therefore runs its discovery on its own schedule, and neither can make the other stand still while it finishes.

The reason follows from how discovery is built. A rule that made each side wait for the other would hand every party a ready excuse for delay, since any lawyer could answer a request with a demand that the opponent go first, and if both sides took that position nothing would move. Declining to tie one party's discovery to another's gives neither side a veto over the other's timetable. Flexibility about order also lets each side choose the sequence that fits its case, and the rule keeps a path open for a stipulation or an order when a particular sequence would serve the convenience of the parties and witnesses.

The plaintiff in that scene treats the order of service as the order of response. Nothing in the rule gives the party that served first any priority, and serving first does not entitle the plaintiff to make the defendant's discovery wait. Each party's duty to respond arises from the requests directed at it, so the defendant's pending responses are a separate matter and give the plaintiff no license to withhold.

Lawyers nonetheless tend to follow a customary order. They often begin with interrogatories to identify documents and witnesses, then turn to requests for production, and conclude with depositions.³⁷ The habit reflects how each step feeds the next. Interrogatory answers show who knows what and which records exist, so the document requests can be aimed at material that is actually there, and a lawyer who reaches a deposition with those documents in hand can question the witness about them. The order is a matter of strategy, and a lawyer who departs from it violates nothing.

An exam stem tends to make the convention sound like a command, or to have a party point at an opponent's unanswered discovery as a reason to postpone its own responses. The customary order is not mandatory, and an opponent's outstanding discovery does not excuse delay. A stipulation between the parties or a court order entered for the convenience of parties and witnesses and in the interests of justice is the authorized way to fix a particular order.