Discovery: What the Other Side Can Make You Produce

Why this matters

Discovery is the compulsory exchange of information before trial, and it is the phase that decides most cases and costs the most to run. Owners have no model for it, which produces two errors: assuming internal records are internal, and assuming a case is won on argument rather than on what the file happens to contain.

The reframing sentence is that discovery reaches far more than a court would let a jury see. The rest follows, including why the text you send your service manager this afternoon is a document in a case you do not know about yet. Nothing here is legal advice, and the rules below are the federal ones.

The scope standard, and why it reframes everything

Under Federal Rule of Civil Procedure 26(b)(1), parties may obtain discovery of any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case, and the same rule says in terms that information within that scope need not be admissible in evidence to be discoverable. State courts run their own analogues, mostly modeled on the federal rule, and not all adopted the 2015 proportionality language in the same words, so the exact test is your state's.

Hold the two halves together. Relevance is broad, covering anything that bears on a claim or a defence, not just the documents you think prove the point. Proportionality is the brake, the argument that keeps a demand for every text message for three years from being enforced against a shop in a modest dispute. A lawyer who makes that argument early saves more money than one who is good at anything else in this phase.

In practice the question is not whether a judge would let this in at trial, it is whether the material bears on a claim or defence and is proportional to what the case is worth. Be wary of the older formulation you will still hear, that anything "reasonably calculated to lead to the discovery of admissible evidence" is fair game: the 2015 amendments deleted that phrase from Rule 26(b)(1) because it was being read as the scope test, and it leaves out proportionality, the only brake you have. An internal email that would never be shown to a jury still gets produced, still gets read by the other side, and still shapes what they ask you at deposition.

The four instruments

Interrogatories. Written questions answered in writing, under oath, by the party. Federal Rule 33 presumptively limits a side to 25, including discrete subparts, and gives 30 days to answer. They lock down names, dates, positions and the identity of records.

Requests for production. Written demands for documents and electronically stored information, under Rule 34, with 30 days to respond. This is where the volume and the cost live: everything demanded must be found, reviewed for relevance and privilege, and produced.

Requests for admission. Statements the other side asks you to admit or deny, under Rule 36. This is the dangerous one, and the danger is structural: under Rule 36(a)(3) a matter is admitted unless the party serves a written answer or objection within 30 days of service. That 30 days is the federal clock and state clocks differ, New York running 20 under CPLR 3133, so confirm which you are on before trusting the number in your head. Miss the date and you have conceded facts nobody argued about. Rule 36(b) does let a court permit withdrawal or amendment where that helps reach the merits and the other side is not prejudiced, so it is not quite irreversible, but relief is discretionary and costs a motion. Calendar the deadline instead.

Depositions. Sworn oral questioning before a court reporter. Federal Rule 30 presumptively allows 10 per side and limits each to one day of 7 hours. They get their own card: see related: The Deposition If It Gets That Far.

Every number above is the federal one. State courts set their own and the spread matters. Interrogatory ceilings run from Rule 33's 25, matched by Texas in a standard case (Tex. R. Civ. P. 190.3), to California's 35 specially prepared interrogatories under Code of Civil Procedure 2030.030, more on a declaration of necessity. Response windows run shorter than the federal 30 days in places, New York giving 20 for interrogatories under CPLR 3133 and document demands under CPLR 3122, and longer in others, California adding 5 days to its 30 where service was by mail. Deposition limits vary most: the 10-per-side and 7-hour caps are federal defaults, and several states set no numeric cap at all, bounding discovery by total hours or by court order. Ask which set governs at the first meeting with counsel: the deadline that hurts you is the one you counted from the wrong rule.

What actually gets produced in a trade dispute

Owners picture a filing cabinet. The real list in a field-service case looks like this, most of it on phones and in software.

• Texts between the owner, dispatch and the techs, including personal phones used for work. A personal device does not put work communications out of reach.
• The dispatch record and GPS or telematics history: who was assigned, when they were dispatched, when the truck arrived and left.
• Photographs, including the ones nobody meant to keep and the ones taken for another purpose.
• The accounting file: invoices, payment history, change orders, what was billed against what was quoted.
• Internal email about the customer, the category that produces the plaintiff's best exhibit more often than any other.
• Personnel records for the techs involved, where competence or training is put in issue.
• Call recordings and voicemail, where the office records calls.

Two consequences, and they are this card's practical payload. What you write today is a document in a case you do not know about yet, so the standard for an internal message is whether you would be comfortable hearing it read aloud with a date on it. And a business whose records are a mess pays twice: once in the hours spent searching, again in what the gaps look like to the person deciding.

The case: what one shop produced, and what the gaps did

A restoration shop is sued by a commercial property manager over water damage on a Friday night, on the allegation that its crew left a valve open at the end of the day. The shop is certain it was not them and has nothing but that certainty when the suit arrives, seven months later.

The plaintiff serves 38 requests for production. Counsel's estimate lands at 52 lawyer-hours for written discovery, the upper half of the 30 to 70 range in the cost card, and says why: the shop's records live in four places, so everything is collected four times and reconciled. One system with a retention policy would have sat near the bottom. See related: What Litigation Actually Costs and How to Control It.

Three records decide it, and only one was created on purpose.

The tech's text to dispatch at 15:38 reads "valve closed, heading out." It was sent so dispatch could release him to the next call, not to prove anything. The GPS history shows the truck leaving at 15:42, four minutes later, consistent with the text. And the property's own access log, obtained from the plaintiff in discovery, shows a different vendor badging in at 17:10, an hour and 28 minutes after the crew left. The shop did not have that third record; the scope of discovery is what got it.

Two gaps cost real money. The shop shot photos only when something looked wrong, so there were no closing photographs, and the plaintiff argued the absence showed nothing was checked. And the dispatch system's GPS breadcrumb retention was set to 90 days out of the box, so at month seven the underlying data was gone. What survived was a route report someone had exported at the time to settle a payroll question, which is the whole finding: the record that saved the shop existed for an unrelated reason.

That second gap was survivable only because nothing had put the shop on notice before the suit landed. Once litigation is reasonably anticipated, letting an automatic deletion keep running is a preservation failure with its own rule. Federal Rule 37(e) has two tiers: information lost through ordinary carelessness gets curative measures no greater than necessary to repair the prejudice, under 37(e)(1); a loss the party intended, to deprive the other side of the information, opens 37(e)(2) and its adverse-inference instruction or dismissal. Intent is the whole difference, and "the system does that on its own" stops being an answer the day you anticipate a claim.

The plaintiff's best exhibit came out of the shop's own production: an internal email from the service manager, two months before this job, reading "we need to be more careful on these buildings, this is the second time." Relevant, not privileged, produced. It did not lose the case, because the timeline held. It is why the case took 52 hours instead of a phone call.

Privilege, in plain terms

Two protections exist, both narrower than owners assume.

Attorney-client privilege covers confidential communications between you and your lawyer for the purpose of getting legal advice. Which law defines it matters, because this is where state variation decides outcomes: under Federal Rule of Evidence 501, privilege in a diversity case is governed by state law, and a dispute between a shop and an out-of-state property manager is usually exactly that. States differ on whose communications inside a business are covered, some running a control-group test that reaches only management, others the broader subject-matter test of Upjohn Co. v. United States, so a tech's email to counsel can be privileged in one state and producible in the next. Work product, at Federal Rule 26(b)(3) and its state equivalents, covers materials prepared in anticipation of litigation, with stronger protection for a lawyer's own mental impressions.

The common and expensive error is thinking that copying a lawyer on a business email makes it privileged. It does not. The communication has to be for legal advice; a business discussion with a lawyer on the distribution list is still a business discussion. The mirror error is forwarding a genuinely privileged message to a third party, which can waive the protection.

Practical rules: keep legal discussions in their own thread with the lawyer, do not mix them with operational instructions, do not forward them on, and ask counsel how to circulate legal advice internally without waiving.

What this means for how you keep records today

This part is cheap and you can do it before anything happens.

Know your retention settings. Every system in your shop has a default retention nobody chose: the dispatch software's GPS history, the phone system's recordings, the texting app's pruning. Find each one and set it deliberately. Longer is not automatically better; a stated, consistently applied policy is, because ordinary deletion under a real policy is defensible and ad hoc deletion is not.

Photograph on completion as a habit, not an exception. Photos that exist only when something was wrong make their own absence meaningful. A closing photo on every job costs a tech 30 seconds and turns a gap into a record.

Keep the job file in one place. Four systems is the difference between the bottom and top of the cost range, and the reconciling is billed at a lawyer's rate.

Suspend the deletions the moment a dispute is anticipated, well before anything is filed. See related: Preserving Evidence the Moment a Dispute Starts, which owns the hold duty and its trigger, and The Data Backup Habit That Saves a Shop From Disaster.

References

• Federal Rules of Civil Procedure 26(b)(1) (scope and proportionality, as amended in 2015), 26(b)(3) (work product), 30 (depositions), 33 (interrogatories), 34 (production), 36(a)(3) and 36(b) (admissions, and withdrawal of one) and 37(e) (failure to preserve electronically stored information); state courts apply their own analogues
• Federal Rule of Evidence 501 (state law governs privilege in a diversity case); Upjohn Co. v. United States (1981)
• State counterparts to the federal numbers: N.Y. CPLR 3122 and 3133; Cal. Code Civ. Proc. 2030.030 and 2030.260; Tex. R. Civ. P. 190.3
• See related: The Deposition If It Gets That Far; What Litigation Actually Costs and How to Control It; Preserving Evidence the Moment a Dispute Starts; You Have Been Served: The First Two Weeks