Diary of a Copyright Infringement Lawsuit – 8 (Discovery; Initial Disclosures)


After the parties have their Rule 26 meeting as described in the prior post, they may start the discovery process. The purpose of discovery is to learn about the other party’s case. Federal Rule of Civil Procedure 26(b)(1) provides that “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”

The courts allow for a variety of discovery tools. First, federal courts require that the parties serve “Initial Disclosures” to get the process started, usually before or soon after the Scheduling Conference, pursuant to Fed. R. Civ. P. 26 (a):

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

The Initial Disclosures are “served” to the other party but are not filed with the court unless they become an issue in the case. From the Initial Disclosures, the parties can learn more about the case by using other discovery methods, such as:

  • Rule 30. Depositions by Oral Examination
  • Rule 31. Depositions by Written Questions
  • Rule 33. Interrogatories to Parties
  • Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
  • Rule 36. Requests for Admission

These discovery tools will be covered in future blog entries.

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