Discovery

What happens at this stage

Discovery is the evidence-gathering phase. Both sides have the right to demand information from each other — documents, written answers, testimony under oath. The goal is to eliminate surprise at trial and let both sides assess the strength of the case.

This is where § 1983 cases are won or lost. The facts that will decide your case — body camera footage, police reports, training records, internal affairs files, officer communications — are in the defendant’s possession. Discovery is how you get them.

It’s also the most resource-intensive phase of litigation and the stage where the government’s resource advantage hits hardest.

Discovery tools

Initial disclosures (Rule 26(a))

Within 14 days of the scheduling conference (unless the court orders otherwise), both sides must automatically disclose:

• Names and contact information for people likely to have relevant information
• Copies or descriptions of relevant documents in their possession
• A computation of damages claimed
• Insurance agreements that may cover the judgment

You don’t have to ask for these — they’re mandatory. If defendants don’t disclose something they should have, that’s a discovery violation.

Interrogatories (Rule 33)

Written questions the other side must answer under oath. Limited to 25 per party (including subparts) unless the court allows more.

Use them strategically:

• Ask for the factual basis of affirmative defenses (“State all facts supporting your qualified immunity defense”)
• Identify witnesses (“Identify every person with knowledge of Plaintiff’s arrest”)
• Pin down their version of events before depositions

Watch out for:

• Objections — defendants will object to scope, relevance, and burden. Some objections are legitimate; many are obstruction.
• Vague answers — “Defendant refers Plaintiff to the body camera footage” is not an answer. Press for specifics.

Requests for production (Rule 34)

Demand that the other side produce documents and electronically stored information (ESI). This is your primary tool for getting:

• Body camera footage — all footage, not just the clip they selected
• Dash camera footage — patrol vehicle cameras
• CAD records — computer-aided dispatch logs
• Police reports — incident reports, supplemental reports, use-of-force reports
• Training records — what the officer was trained on and when
• Internal affairs files — prior complaints against the officer
• Department policies — use of force, arrest procedures, body camera policies
• Communications — emails, texts, radio transmissions related to the incident
• Personnel files — discipline, commendations, performance reviews

The fight: defendants will resist producing much of this. Expect objections for relevance, privacy, privilege, and “undue burden.” Be prepared to file motions to compel.

Requests for admission (Rule 36)

Force the other side to admit or deny specific facts. Unanswered requests are deemed admitted after 30 days — one of the most powerful and underused discovery tools.

Examples:

• “Admit that Officer Smith did not perform a field sobriety test on Plaintiff.”
• “Admit that no breathalyzer was administered.”
• “Admit that the body camera footage shows Plaintiff standing still at the time of arrest.”

If they admit, the fact is established. If they deny something that’s obviously true, you use the denial to destroy their credibility at trial.

Depositions (Rule 30)

Live testimony under oath, recorded by a court reporter. You ask questions; the witness answers. Their testimony is locked in — if they change their story at trial, you impeach them with the deposition transcript.

Deposition targets in a § 1983 case:

• The arresting officer(s)
• Supervisors on scene
• Internal affairs investigators
• The person(s) who made policy decisions (for Monell claims)
• Witnesses to the incident

Cost: $500-$2,000+ per deposition (court reporter fees, transcript costs). This is a significant expense for pro se litigants.

Pro tip: If you’re IFP, some courts will allow telephonic or video depositions to reduce costs. Ask.

Subpoenas (Rule 45)

Compel non-parties to produce documents or testify. Useful for:

• Hospital/medical records (if you were injured)
• 911 call recordings
• Surveillance footage from private businesses near the incident
• Witness testimony from bystanders

The discovery fight

Government defendants have lawyers whose full-time job is litigation. You have yourself. The resource imbalance is brutal in discovery.

Common defense tactics

• Boilerplate objections — objecting to everything to slow you down and hope you give up
• Delayed responses — technically due in 30 days but often late, requiring you to file motions
• Incomplete production — producing some documents but “overlooking” the damaging ones
• Privilege claims — asserting attorney-client privilege or work product protection over documents that may not qualify
• “Official information” privilege — a government-specific privilege claim for internal law enforcement documents. You’ll likely need to brief this.
• Cost-shifting — arguing you should pay for the cost of producing their own documents

What you can do

• Meet and confer first — before filing any discovery motion, you must attempt to resolve the dispute directly with opposing counsel (Rule 37(a)(1)). Document these attempts in writing (email).
• File motions to compel — if they won’t produce, ask the court to order it (Rule 37)
• Ask the court to penalize them — if their obstruction is egregious, ask for court-imposed penalties including fees, adverse inference instructions (the jury is told to assume the hidden evidence was bad for the defendant), or evidence preclusion
• Be specific — vague requests get vague objections. Ask for specific documents by name, date range, and custodian.

Spoliation

If defendants destroy, alter, or fail to preserve evidence they knew was relevant, that’s spoliation. Body camera footage that was “automatically deleted.” Emails that were “purged per retention policy.” Radio transmissions that “weren’t recorded.”

Courts can penalize spoliation in several ways:

• Adverse inference instruction — telling the jury to assume the destroyed evidence was unfavorable to the defendant
• Evidence preclusion — preventing the defendant from introducing evidence on the topic
• Monetary penalties — making them pay your costs caused by the spoliation
• Default judgment — in extreme cases (rare)

Send a litigation hold letter early — a formal notice to defendants that they must preserve all evidence related to your claims. Send it before filing if possible. This creates a documented duty to preserve.

What to expect

Discovery typically lasts 6-12 months. It feels like a second job. You’ll spend more time on discovery than on any other phase of the case.

The government will have a team of lawyers managing their discovery. You’ll have yourself. This is the stage where the access-to-justice gap is widest.

Stay organized. Track every request, every response, every deadline. Use a spreadsheet. File motions when they stonewall. Don’t let discovery disputes go unaddressed — the court won’t know about obstruction unless you tell them.

Timeline

• Initial disclosures: 14 days after scheduling conference
• Discovery period: set by scheduling order (typically 6-12 months)
• Interrogatory/RFP responses: 30 days after service
• Deposition notice: reasonable notice required (typically 14+ days)
• Discovery motions: must be filed before discovery cutoff

Template: Basic Interrogatories for § 1983 (Excessive Force / False Arrest)

These are starting points. Tailor them to your specific claims. Federal rules limit interrogatories to 25 (including subparts) unless the court orders otherwise. Use them strategically — don’t waste questions on information you can get from documents.

PLAINTIFF’S FIRST SET OF INTERROGATORIES TO DEFENDANT [OFFICER NAME]

Pursuant to Federal Rule of Civil Procedure 33, Plaintiff requests that Defendant answer the following interrogatories under oath within 30 days:

1. State your full name, badge number, rank, and assigned unit on [date of incident].

2. Describe your complete training history related to: (a) use of force, (b) de-escalation, (c) First Amendment rights of citizens, and (d) body-worn camera operation and activation requirements. For each training, identify the date, duration, instructor, and training provider.

3. Describe in detail every action you took from the moment you first observed or became aware of Plaintiff on [date] until the moment Plaintiff was no longer in your custody or control. Include every verbal command, physical action, and use of force, with approximate timestamps.

4. Identify every crime you believed Plaintiff was committing or had committed at the time you [arrested / detained / used force against] Plaintiff. For each identified crime, state the specific facts that led you to believe that crime was being committed.

5. Identify every alternative to [arrest / use of force] that you considered and explain why you rejected each alternative.

6. State whether your body-worn camera was activated during the entire encounter with Plaintiff. If not, explain when it was activated, when it was deactivated, and why.

7. Identify every officer present during any portion of the encounter with Plaintiff. For each officer, state their name, badge number, rank, and role in the encounter.

8. Identify every report you filed in connection with the incident, including incident reports, arrest reports, use-of-force reports, and supplemental reports. State the date each report was written.

9. State whether you have been the subject of any citizen complaints, internal affairs investigations, or disciplinary proceedings during your career. For each, identify the date, the nature of the complaint, and the outcome.

10. Identify every prior civil rights lawsuit (42 U.S.C. § 1983 or state equivalent) in which you have been named as a defendant. For each, state the case name, case number, court, and outcome.

Template: Basic Requests for Production for § 1983

Use these alongside your interrogatories. Requests for production get you the actual documents — the footage, reports, policies, and communications that make or break your case.

PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION TO DEFENDANT [CITY/DEPARTMENT]

Pursuant to Federal Rule of Civil Procedure 34, Plaintiff requests that Defendant produce the following documents within 30 days:

1. All body-worn camera footage from every officer present at or responding to [location] on [date] between [times], including pre-event buffer recordings and any footage from transport or booking.

2. All dashboard camera footage from every vehicle dispatched to or present at the scene.

3. All dispatch audio recordings and CAD logs related to the incident.

4. All incident reports, arrest reports, supplemental reports, and use-of-force reports filed by any officer in connection with the incident.

5. The complete personnel file for [officer name(s)], including all citizen complaints, internal affairs investigations, disciplinary actions, and early warning system flags.

6. All department policies in effect on [date of incident] regarding: (a) use of force, (b) arrest procedures, (c) body-worn cameras, (d) de-escalation, (e) citizens’ right to record police, and (f) officer reporting requirements.

7. All training materials provided to [officer name(s)] regarding use of force, de-escalation, and constitutional rights of citizens.

8. All use-of-force reports filed department-wide for the period [3-5 years], in a format that allows identification by reporting officer. If production in full is objected to, produce aggregate data showing the number of use-of-force incidents per officer per year.

9. All communications — including emails, text messages, radio transmissions, and internal messaging — between any officers, supervisors, or department personnel regarding the incident or regarding Plaintiff, from [date of incident] to present.

10. All documents related to any prior § 1983 lawsuit or civil rights complaint against [officer name(s)] or against the [department/city] involving similar allegations (excessive force, false arrest, First Amendment retaliation — match to your claims) for the past ten years.