Irresistible Evidence Under Federal Rule 26(c): Proving Annoyance, Embarrassment, and Undue Burden

Parties in federal court (in most states) are entitled to discovery of nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. But can litigants make respondents create records or analyses of raw data or the other side?

A court can prevent or limit pretrial discovery to protect the party or person from whom it is sought from annoyance, embarrassment, oppression, or undue burden or expense. Since most discovery is usually unwelcome, vigorous debate continues over what constitutes excessive annoyance, embarrassment, oppression, undue burden or expense, the necessary burdens of proof, and the quality of evidence required to obtain relief.

Since courts hear complaints routinely, counsel must be able to capture the court's attention with concrete arguments supported by data and evidence.

Listen as this esteemed panel of litigators discusses what is required to prove or disprove that discovery subjects the subject to annoyance, embarrassment, oppression, or undue burden or expense sufficient to modify the general rules of production.