Discovery

What It Is

Discovery is the pretrial phase where parties exchange information relevant to the case. Under Federal Rule of Civil Procedure 26, parties must disclose relevant documents, identify witnesses, and respond to requests for information.

Types of discovery:

• Interrogatories (Rule 33) — Written questions the other side must answer under oath
• Requests for Production (Rule 34) — Demands for documents, videos, emails, records
• Requests for Admission (Rule 36) — Statements the other side must admit or deny
• Depositions (Rule 30) — Live, under-oath testimony recorded by a court reporter

Why It’s Critical in § 1983

Most evidence of police misconduct is in the government’s possession:

• Body camera and dashcam footage
• Internal affairs complaints
• Training records
• Use-of-force reports
• Prior misconduct complaints against the same officer
• Policies and procedures
• Emails and internal communications

Without discovery, you’re bringing allegations. With discovery, you’re bringing evidence.

The Practical Problem

Government defendants resist discovery. Common tactics:

• Boilerplate objections: “Overly broad,” “unduly burdensome,” “not reasonably calculated to lead to the discovery of admissible evidence”
• Late or incomplete production: Producing some documents while withholding others
• Privilege claims: Asserting attorney-client privilege, work product, or “official information” privilege
• Protective orders: Seeking to limit what you can discover or share publicly

Your counter: motions to compel. If they won’t produce, you ask the court to order it.

Proportionality

After the 2015 amendments to Rule 26, discovery must be “proportional to the needs of the case.” Defendants use this to argue that broad discovery requests are disproportionate.

Your response: in civil rights cases, the balance tips toward disclosure. The public interest in accountability, the information asymmetry (they have everything, you have nothing), and the gravity of constitutional violations all support broad discovery.

Discovery in Pro Se Cases

Courts give pro se litigants some leeway on discovery procedures, but you still need to:

• Serve proper requests: Follow the rules on format, timing, and service
• Meet and confer: Before filing a motion to compel, you must attempt to resolve the dispute with opposing counsel
• Be specific: “All documents relating to everything” will get objected to. “All use-of-force reports involving Officer Smith from 2020-2024” is specific and defensible
• Keep deadlines: Discovery has a cutoff date. Miss it and you lose access

Key Cases

• Hickman v. Taylor, 329 U.S. 495 (1947) — Work product doctrine
• Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) — Scope of discovery under Rule 26