CIVIL PROCEDURE FALL 2003 SECTION F CLASS 22/23 DISCOVERY IV

DISCOVERY TECHNIQUES: THE BIG PICTURE Advantages/Disadvantages Advantages/Disadvantages Party/nonparty? Party/nonparty? How do you obtain using one of these techniques? How do you obtain using one of these techniques? All discovery obtained through any of these techniques is subject to 26(b) rule on discovery SCOPE All discovery obtained through any of these techniques is subject to 26(b) rule on discovery SCOPE

THE TECHNIQUES YOU SHOULD KNOW Informal discovery Informal discovery Interrogatories Interrogatories Depositions Depositions Document requests Document requests Physical/mental examinations Physical/mental examinations Requests for admission Requests for admission

SIGNATURE REQUIREMENTS Who must sign interrogatory answers? Who must sign interrogatory answers? Who must sign interrogatory objections? Who must sign interrogatory objections?

TAKING DEPOSITIONS: FRCP 30 Can parties be deposed? Can parties be deposed? Can non-parties be deposed? (30(a)(1)) Can non-parties be deposed? (30(a)(1)) Can a corporation be deposed? (See 30(b)(6)) Can a corporation be deposed? (See 30(b)(6)) When is leave of the court required to take a deposition (See 30(a)(2))? When is leave of the court required to take a deposition (See 30(a)(2))?

DEPOSITIONS OF PARTIES How do you initiate the deposition of a party? How do you initiate the deposition of a party? What if you want the party to bring documents? See 30(b)(5) What if you want the party to bring documents? See 30(b)(5)

DEPOSITIONS OF NON- PARTIES How do you initiate the deposition of a non-party? See FRCP 30(a)(1), 45 How do you initiate the deposition of a non-party? See FRCP 30(a)(1), 45 What should counsel do if she wants a non-party to produce documents or other tangible evidence for a deposition? See 45 What should counsel do if she wants a non-party to produce documents or other tangible evidence for a deposition? See 45 What happens if a non-party does not show up for the deposition? What happens if a non-party does not show up for the deposition?

LIMITS ON TIME AND PLACE OF DEPOSITIONS Limits on place of deposition for parties or non-parties? Limits on place of deposition for parties or non-parties? Time limit on depositions? Time limit on depositions? Numerical limit on depositions? Numerical limit on depositions?

REVIEWING THE DEPOSITION TRANSCRIPT Can a deponent review the transcript of her deposition and if so, in what circumstances? See FRCP 30(e) Can a deponent review the transcript of her deposition and if so, in what circumstances? See FRCP 30(e)

UNUSUAL TYPES OF DEPOSITIONS Telephone/videoconference depositions - see 30 (b)(7) Telephone/videoconference depositions - see 30 (b)(7) Depositions on written questions - see 31 – just know what one is, not specific rules for its noticing and conduct Depositions on written questions - see 31 – just know what one is, not specific rules for its noticing and conduct Video depositions - see 30(b)(2) Video depositions - see 30(b)(2)

USE OF DEPOSITIONS AT TRIAL FRCP 32 FRCP 32 Any or all of a deposition may be used as trial as if witness present and testifying (an exception against rule against hearsay evidence) Any or all of a deposition may be used as trial as if witness present and testifying (an exception against rule against hearsay evidence)

USE OF DEPOSITIONS AT TRIAL Note – rules of evidence still apply to admission of the depositions contents Note – rules of evidence still apply to admission of the depositions contents A deposition is like a box containing evidence – the box can be used at trial but the contents are subject to admissibility rules A deposition is like a box containing evidence – the box can be used at trial but the contents are subject to admissibility rules

DOCUMENT REQUESTS: FRCP 34 How do you request production/inspection of documents, things or property from a party? FRCP 34(a) and (b) How do you request production/inspection of documents, things or property from a party? FRCP 34(a) and (b) How do you request a non-party to produce documents & things? FRCP 34(c) How do you request a non-party to produce documents & things? FRCP 34(c)

RESPONDING TO DOCUMENT REQUESTS How long does the recipient of the request have to respond? (See 30(b)) How long does the recipient of the request have to respond? (See 30(b)) Can the recipient object? If so, In what circumstances? Can the recipient object? If so, In what circumstances?

PRODUCTION OF DOCUMENTS If the recipient of a document request does not object, can she produce the documents in a jumbled mass? If not, how must they be arranged? What is the governing FRCP? If the recipient of a document request does not object, can she produce the documents in a jumbled mass? If not, how must they be arranged? What is the governing FRCP?

Document Production Responding party has several options under R. 34(b) Responding party has several options under R. 34(b) They can let serving party inspect/copy documents where they are normally kept (a file room, for example) or as they are normally kept in the ordinary course of business They can let serving party inspect/copy documents where they are normally kept (a file room, for example) or as they are normally kept in the ordinary course of business They could also collect the documents and organize/label them to correspond to the document requests They could also collect the documents and organize/label them to correspond to the document requests The responding party can make copies for the serving party but is not required to do so. The responding party can make copies for the serving party but is not required to do so.

HYPO – PHYSICAL EXAMINATIONS Pat is injured in an automobile crash with Dunham. Pat sues Dunham in negligence for damages to compensate her for her injuries. Dunham seeks to have Pat examined by a physician. Pat is injured in an automobile crash with Dunham. Pat sues Dunham in negligence for damages to compensate her for her injuries. Dunham seeks to have Pat examined by a physician. 1. Should the court grant permission? 1. Should the court grant permission? 2. If the exam takes place, is Pat entitled to see a copy of the physician’s report to Dunham? 2. If the exam takes place, is Pat entitled to see a copy of the physician’s report to Dunham?

MOREON PAT/DUNHAM HYPO Pat requests a copy of the physician’s report and receives it. Dunham then requests from Pat copies of Pat’s own physician’s report on her injuries. Is Dunham entitled to these? Pat requests a copy of the physician’s report and receives it. Dunham then requests from Pat copies of Pat’s own physician’s report on her injuries. Is Dunham entitled to these?

MORE ON PAT & DUNHAM Rather than move for a physical exam, Dunham’s lawyer in the Rule 26(f) conference suggests that Pat submit voluntarily to a physical exam. If Pat agrees, can Dunham’s lawyer obtain a copy of the report? Can Dunham’s lawyer take the examining doctor’s deposition? What is the governing FRCP? Rather than move for a physical exam, Dunham’s lawyer in the Rule 26(f) conference suggests that Pat submit voluntarily to a physical exam. If Pat agrees, can Dunham’s lawyer obtain a copy of the report? Can Dunham’s lawyer take the examining doctor’s deposition? What is the governing FRCP?

PAT/DUNHAM A key witness in Pat’s suit vs. Dunham is Jones, who allegedly saw “everything” that happened from a position of more than 100 feet away. Can Dunham require Jones to take an eye exam? What happens if Jones is an employee of Dunham? A key witness in Pat’s suit vs. Dunham is Jones, who allegedly saw “everything” that happened from a position of more than 100 feet away. Can Dunham require Jones to take an eye exam? What happens if Jones is an employee of Dunham?

REQUESTS FOR ADMISSION What is a request for admission? What is a request for admission? What FRCP governs requests for admission? What FRCP governs requests for admission? Requests for admission can be seen as much as pleading rules as discovery devices. Why? Requests for admission can be seen as much as pleading rules as discovery devices. Why?

Pros and Cons of Requests for Admission Pros? Pros? Cons? Cons?

PROCEDURE FOR REQUESTING ADMISSIONS How does a party request an admission? How does a party request an admission? From whom may parties request admissions? From whom may parties request admissions? Can non-parties request admissions? Can non-parties request admissions?

SCOPE OF REQUESTS FOR ADMISSIONS For what facts/matters may requests for admissions be validly made? For what facts/matters may requests for admissions be validly made? Can requests for admission include requests for opinions of fact or applications of law to fact? Pure legal conclusions? Whether a document is genuine? Can requests for admission include requests for opinions of fact or applications of law to fact? Pure legal conclusions? Whether a document is genuine? Are there numerical limits on requests for admission? Are there numerical limits on requests for admission?

RESPONDING TO REQUESTS FOR ADMISSION How and when should a party respond to a request for an admission? How and when should a party respond to a request for an admission? Is it wise to just ignore a request for admission? Is it wise to just ignore a request for admission?

DISCOVERY SANCTIONS There are special provisions in the discovery rules for sanctions for failure to comply with the discovery rules. There are special provisions in the discovery rules for sanctions for failure to comply with the discovery rules. See especially FRCP 26(g) and 37 See especially FRCP 26(g) and 37 Big Question: What happens if I don’t comply with what the discovery Rules require me to do ? Big Question: What happens if I don’t comply with what the discovery Rules require me to do ? As Glannon points out, sometimes nothing, depending on the other party As Glannon points out, sometimes nothing, depending on the other party

RULE 26(g) SIGNATURE REQUIREMENTS What are the signature requirements under Rule 26(g)? What are the signature requirements under Rule 26(g)? What happens if these are violated? What happens if these are violated?

POLICING DISCOVERY- MOTIONS TO COMPEL & SANCTIONS Often, a three- step process, if the party seeking discovery believes opponent failed to comply Often, a three- step process, if the party seeking discovery believes opponent failed to comply Sometimes only a two-step process Sometimes only a two-step process

DISCOVERY SANCTIONS : 3 STEP PROCES 1. Informal Conference (37(a)(2)) 2. Motion to compel (37(a)(2)) 2. Motion to compel (37(a)(2)) 3. Sanctions for failure to obey an order to compel (37(b)) 3. Sanctions for failure to obey an order to compel (37(b)) USUALLY COURT CAN ONLY SANCTION WHERE THERE IS A DISCOVERY ORDER (EXCEPT 37(c) and (d) USUALLY COURT CAN ONLY SANCTION WHERE THERE IS A DISCOVERY ORDER (EXCEPT 37(c) and (d)

MOTIONS TO COMPEL DISCOVERY Rule 37(a) Rule 37(a) When should a party file a motion to compel? When should a party file a motion to compel? What special certification must accompany a motion to compel? What special certification must accompany a motion to compel? In which court should the moving party file the motion to compel? In which court should the moving party file the motion to compel?

COSTS OF MOTION TO COMPEL – 37(a)(4) What costs orders must be made by a court if a motion to compel succeeds? What costs orders must be made by a court if a motion to compel succeeds? What orders must be made by a court if a motion to compel is denied? What orders must be made by a court if a motion to compel is denied? What orders may a court make if it denies the motion to compel in part and grants it in part? What orders may a court make if it denies the motion to compel in part and grants it in part?

HYPO Plaintiff Zooey obtains an order for a physical examination of defendant Franny. Franny fails to attend for the examination. Can Zooey successfully move to have Franny held in contempt of court? What is the governing provision of the FRCP? Plaintiff Zooey obtains an order for a physical examination of defendant Franny. Franny fails to attend for the examination. Can Zooey successfully move to have Franny held in contempt of court? What is the governing provision of the FRCP?

SANCTIONS FOR FAILING TO COMPLY WITH ORDER TO COMPEL – Rule 37(b) What sanctions can be imposed for failure to obey an order by the court compelling discovery? What about failure to obey a Rule 26(f) order? What sanctions can be imposed for failure to obey an order by the court compelling discovery? What about failure to obey a Rule 26(f) order?

SANCTIONS Rule 37(b) Deem facts established 37(b)(2)(A) Deem facts established 37(b)(2)(A) Prohibit evidence 37(b)(2)(B) Prohibit evidence 37(b)(2)(B) Strike pleadings 37(b)(2)(C) Strike pleadings 37(b)(2)(C) Issue Stay 37(b)(2)(C) Issue Stay 37(b)(2)(C) Dismiss Action or Part of an Action 37(b)(2)(c) Dismiss Action or Part of an Action 37(b)(2)(c) Treat failure to obey as contempt of court (except for failure to submit to court-ordered mental or physical exam) 37(b)(2)(D), 37(b)(2)(E) Treat failure to obey as contempt of court (except for failure to submit to court-ordered mental or physical exam) 37(b)(2)(D), 37(b)(2)(E) Payment of reasonable expenses by party/attorney Payment of reasonable expenses by party/attorney Also applies to failure to comply with Rule 26(f) discovery order Also applies to failure to comply with Rule 26(f) discovery order

Failure to Participate in the Discovery Process E.g. failure to respond to interrogatories or document requests, or failure to show up at a deposition E.g. failure to respond to interrogatories or document requests, or failure to show up at a deposition What sanctions can be imposed? What sanctions can be imposed?

Failure to Participate in the Discovery Process E.g. failure to respond to interrogatories or document requests, or failure to show up at a deposition E.g. failure to respond to interrogatories or document requests, or failure to show up at a deposition What sanctions can be imposed? 37(d) permits a motion for sanctions WITHOUT a court order – any sanctions that are “just” What sanctions can be imposed? 37(d) permits a motion for sanctions WITHOUT a court order – any sanctions that are “just”

SANCTIONS: AUTOMATIC DISCLOSURES What happens if Jane fails to disclose the name and address of a witness who may testify in her support at trial? What happens if Jane fails to disclose the name and address of a witness who may testify in her support at trial?

SANCTIONS: AUTOMATIC DISCLOSURES What happens if Jane fails to disclose the name and address of a witness who may testify in her support at trial? What happens if Jane fails to disclose the name and address of a witness who may testify in her support at trial? Jane can’t use the witness’s testimony as evidence (37(c)(1)) and in addition she could be sanctioned pursuant to 37(b)(2)(A), (B), and (C) Jane can’t use the witness’s testimony as evidence (37(c)(1)) and in addition she could be sanctioned pursuant to 37(b)(2)(A), (B), and (C)

Sanctions for Failure to Admit Paul fails to admit a fact in response to a R. 36 request to admit served by Barbara. Barbara later proves the truth of the fact. Are there any applicable sanctions? Paul fails to admit a fact in response to a R. 36 request to admit served by Barbara. Barbara later proves the truth of the fact. Are there any applicable sanctions?

Sanctions for Failure to Admit Paul fails to admit a fact in response to a R. 36 request to admit served by Barbara. Barbara later proves the truth of the fact. Are there any applicable sanctions? Yes – Paul may have to pay Barbara’s reasonable expenses under 37(c)(2) Paul fails to admit a fact in response to a R. 36 request to admit served by Barbara. Barbara later proves the truth of the fact. Are there any applicable sanctions? Yes – Paul may have to pay Barbara’s reasonable expenses under 37(c)(2)

Failure to participate in the framing of a discovery pla What sanctions may be awarded? What sanctions may be awarded?

37(g): SANCTIONS FOR FAILURE TO PARTICIPATE IN DISCOVERY PLAN Court can require the party failing to participate to pay the expenses of another party, including a reasonable attorney fee, caused by the failure Court can require the party failing to participate to pay the expenses of another party, including a reasonable attorney fee, caused by the failure