Also known as: FRCP 26 · Fed. R. Civ. P. 26 · Federal Rules of Civil Procedure 26 · Rule 26 · FRCP Rule 26
Written by attorneys — see sources below.
A federal procedural rule establishing the framework for pretrial discovery in civil actions. It sets required initial disclosures, defines the scope of permissible discovery, imposes limits on cumulative or burdensome requests, and provides protections for work product and expert communications.
Fidelity Trust served a request on Frontier Capital seeking every internal email from the past decade. Frontier moved for a protective order. The court denied the request because the proposed discovery fell outside the scope permitted by the rule.
Ferrum Metals produced a privileged memo during document review. Upon discovery of the error the next morning, its counsel immediately notified opposing counsel and filed a motion to enforce the clawback order. The court held that the prompt steps preserved the protection.
Felipe Figueroa served thirty interrogatories on Fisher Foods without stipulation or court order. Fisher moved to strike the excess five. The court limited the interrogatories to twenty-five under the numerical cap.
Flora Ford served an interrogatory asking Frontier Capital to state its legal theory for denying liability. Frontier objected that the question sought a legal conclusion. The court overruled the objection because the interrogatory related to a matter within the permitted scope.
The court entered a scheduling order directing the parties to complete all Rule 26 disclosures by a set date and to limit subsequent discovery to specific categories. Fabian Flynn later sought broader document requests. The court enforced the order and denied the additional requests.
Freya Freeman, in-house counsel for Fidelity Trust, interviewed mid-level engineers about a product defect at the direction of superiors. The resulting memos were withheld from discovery. The court upheld the protection because the communications were made for the purpose of obtaining legal advice.
Upjohn Co. manufactures and sells pharmaceuticals in the United States and abroad. In January 1976, independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary had made payments to or for the benefit of foreign government officials in order to secure government business. The accountants informed Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars and had served as General Counsel for twenty years. Thomas consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed questionable payments. As part of this investigation, the attorneys prepared a letter containing a questionnaire that was sent to all foreign general and area managers over the Chairman's signature. The letter noted recent disclosures that several American companies had made possibly illegal payments to foreign government officials. It stated that Thomas had been asked to conduct an investigation to determine the nature and magnitude of any such payments. Managers were instructed to treat the investigation as highly confidential and to send responses directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and thirty-three other Upjohn officers or employees. On March 26, 1976, Upjohn voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing the questionable payments. A copy of the report was simultaneously submitted to the Internal Revenue Service. The IRS immediately began an investigation to determine the tax consequences of the payments. On November 23, 1976, the Service issued a summons pursuant to 26 U.S.C. § 7602 demanding production of the records described in the summons. The records included written questionnaires sent to managers of the Upjohn Company's foreign affiliates. They also included memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the Upjohn Company and its subsidiaries. Upjohn declined to produce the documents specified in the summons on the grounds that they were protected by the attorney-client privilege and constituted attorneys' work product prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition in the United States District Court for the Western District of Michigan seeking enforcement of the summons under 26 U.S.C. §§ 7402(b) and 7604(a). The district court adopted a magistrate's recommendation that the summons should be enforced. Upjohn appealed to the Court of Appeals for the Sixth Circuit. The Sixth Circuit rejected the magistrate's finding of a waiver of the attorney-client privilege. However, it held that the privilege did not apply to the extent the communications were made by officers and agents not responsible for directing Upjohn's actions in response to legal advice. The court remanded to the district court for a determination of who was within the control group. In a footnote, the court stated that the work-product doctrine is not applicable to administrative summonses issued under 26 U.S.C. § 7602. The Supreme Court granted certiorari.
The requesting party must demonstrate substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship. Opinion work product revealing mental impressions receives heightened protection.
Supporting sources
…National Council on Crime and Delinquency that a "clear and convincing" standard be adopted. Model Rules for Juvenile Courts, Rule 26, p. 57 (1969). See generally Cohen, The Standard of Proof in Juvenile Proceedings: Gault Beyond a Reasonable Doubt, 68 Mich. L. Rev. 567 (1970). : (Majority n. 4) Appellee, New…
…was reaffirmed recently in United States v. Nobles , 422 U. S. 225, 236-240 (1975), and has been substantially incorporated in Federal Rule of Civil Procedure 26 (b) (3). As we stated last Term, the obligation imposed by a tax summons remains "subject to the traditional privileges and limitations." United States v. Euge , 444 U. S. 707,…
…learn whether NASCO could afford to pay for the station, the court canceled the depositions consistent with its authority under Federal Rule of Civil Procedure 26(g). At the status conference nine days before the April 1985 trial date, the District Judge again warned counsel that further misconduct would not be tolerated. Finally, on…
…therefore any additional discovery would be unreasonably cumulative, duplicative, burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points…
Rule 26(b)(5)(B) supplies the procedure for notifying the receiving party and demanding return or sequestration after an inadvertent production. Compliance with that procedure satisfies the prompt-rectification requirement of Rule 502(b)(3).
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Absent stipulation or court order, a party may serve no more than twenty-five interrogatories. Additional interrogatories are permitted only when consistent with the proportionality and scope limits of Rule 26(b)(1) and (2).
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The disclosure must identify the subject matter on which the expert is expected to present evidence and provide a summary of the facts and opinions to which the witness is expected to testify.
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Rule 16(c)(2)(F) expressly authorizes the court to control and schedule discovery, including orders that affect disclosures and discovery conducted under Rule 26 and Rules 29 through 37.
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