Chapter 6:
Pretrial and Trial Practice
Without intending to be comprehensive, this chapter discusses a variety of procedural issues related to litigation and trial practice, roughly in the chronology of litigation. First, the chapter reviews informal and formal methods of discovery, including mandatory initial disclosures and conferences involving discovery issues. Mechanics, strategy, and practice pointers are included. Second, the chapter deals with conferences and scheduling, with particular attention to the role of magistrate judges.
Third, the chapter delves into motions practice, including motions for emergency relief and for summary judgment, which should be of particular interest to legal aid attorneys. Fourth, the rise and use of mandatory or encouraged alternative dispute resolution (ADR) procedures are covered and practical advice on the use of ADR and crafting litigation to make subsequent use of ADR more successful is included. Finally, the chapter discusses both trial and appellate practice.
I. Discovery and Trial Preparation
Discovery is the process of uncovering relevant facts and identifying witnesses whose testimony can establish those facts. As required by Federal Rule of Civil Procedure 11, discovery begins with a reasonable investigation of the facts before the attorney drafts the complaint.
I. A. Pre-Litigation Discovery
This pre-filing investigation may include a client interview, interviews of witnesses, review of public records, correspondence with opposing parties, and requests for information pursuant to public records or Freedom of Information Act provisions. Advocates are also increasingly using the Internet as a primary source of valuable pre-filing information. Whenever possible, use pre-litigation investigation rather than formal discovery to establish facts./1/ Even when the investigation requires the cooperation of adverse parties, that cooperation is more likely to be forthcoming before suit is filed.
A thorough investigation would often benefit from interviewing current or former employees of a potentially adverse corporate entity or government agency. This raises complex professional ethics concerns that you need to consider, which are governed by the rules of professional conduct in your jurisdiction. Rule 4.2 of the American Bar Association Model Rules of Professional Conduct governs the permissibility of ex parte contacts with represented persons by channeling most communications through counsel. Rule 4.2 specifies:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order./2/
The “primary concern” behind the Rule 4.2 proscription “is to avoid overreaching caused by disparity in legal knowledge; it is designed to protect lay parties.”/3/ A significant violation of your jurisdiction’s ethical rules prohibiting ex parte contact with a represented party or person may carry sanctions that include preclusion of the evidence obtained from the contact, disqualification of counsel, or even dismissal of the action./4/
Where the represented “person” is an individual opposing party, application of the Rule’s no-contact provisions is relatively straightforward. Its application to corporate or governmental employees that work for an opposing party is less clear and has been the subject of a great deal of commentary./5/
The comments to Model Rule 4.2, significantly revised in 2002, provide some clarification on the scope of the no-contact prohibition with respect to employees of an organizational party:
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. . . ./6/
The comment thus establishes three situations in which ex parte contact with an organizational employee is prohibited: (1) if the “constituent” is regularly working with the organization’s attorney with respect to the matter being litigated; or (2) if that person is authorized to “obligate” the organization regarding the matter; or (3) if the person’s act or omission with respect to the matter “may be imputed” for purposes of liability to the organization. Case law has provided several tests or sets of guidelines for gauging whether the no-contact provisions of the American Bar Association Model Rule and its variations among the states come into play with respect to organizational parties. A minority of jurisdictions have adopted a blanket test that prohibits all ex parte contact./7/ Under the “party-opponent admission” test, contact is prohibited with any employee whose statement might be admissible as a party-opponent admission under Rule 801(d)(2)(D) of the Federal Rules of Evidence, or its state counterparts./8/ An agent-employee’s statement is not hearsay and is, therefore, admissible against the principal-employer if it concerns a matter within the scope of the employee’s employment, and is made during the employee’s existence of the agency relationship (period of employment)./9/ Some courts employ a “managing-speaking agent” test which affords protection commensurate with the attorney-client privilege. This test generally restricts contact with those employees who have “speaking” authority for the organization that is legally binding upon the entity./10/ The “control group” test encompasses only those top-level management employees who have responsibility for making final decisions, in addition to employees filling necessary advisory roles./11/ A case-by-case balancing test incorporating the respective needs of the parties has been applied in some instances. These decisions have referenced factors such as the claims asserted, the employee’s position and duties, whether the employee’s statements are likely to be admissible, the employer’s interests in protecting itself, and the availability of other discovery alternatives./12/ Finally, the New York Court of Appeals has adopted an “alter ego” test that includes corporate employees whose acts or omissions in the matter at issue are binding on the corporation, or are imputed to the corporation for liability purposes, as well as other employees implementing the advice of counsel./13/ Given the variety of tests used, consult your jurisdiction’s particular rule as well as interpretive case law and ethics opinions.
Contacting employees of government entities presents additional concerns: “Indeed, while for most litigation purposes the law treats a government entity just like any other party . . . unlike a corporate party, the government also has a duty to advance the public’s interest in achieving justice, an ultimate obligation that outweighs its narrower interest in prevailing in a lawsuit.”/14/ The comments to Model Rule 4.2 also reinforce the constitutionally protected right to petition the government: “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.”/15/
The cases are generally more permissive with respect to former employees. The Model Rule 4.2 comments provide: “Consent of the organization’s lawyer is not required for communication with a former constituent.”/16/ Numerous decisions have held that an attorney may communicate ex parte with unrepresented former employees of a corporate party, even if they were in a managerial position at the time of the incidents giving rise to the litigation. This is unless the former employees’ own conduct was involved in the disputed events, or they had access to corporate confidences./17/ Once a managerial employee leaves the organization, she no longer speaks for the corporation, her admissions no longer bind the corporation, and she may, therefore, be interviewed ex parte without notice./18/ Other former employees may also be interviewed, unless their act or omission in connection with the particular matter may be imputed to the organization for purposes of civil or criminal liability./19/ No effort should be made, however, to induce the former employee to violate the attorney-client privilege to the extent his communications as a former employee with his former employer’s counsel are protected by it.
Advocates should be aware of the case law in their jurisdiction regarding the ethical constraints of contacting organizational staff of adverse parties. The practical difficulty of interpreting these standards remains, however: Rule 4.2 involves serious practical difficulties in many specific situations. First, a lawyer seeking an interview often cannot know in advance whether the individual is covered by Rule 4.2 or not, because often only the interview itself discloses the interviewee’s relationship to the organization party and to the underlying transaction. Second, the rules of respondeat superior and vicarious admissions against interest [if applicable] are notoriously fuzzy, thus making it difficult to apply Rule 4.2 even when the facts are clear. Third, these rules differ somewhat from state to state and as between state and federal law. At bottom, if it turns out that the interviewee is covered by Rule 4.2, conducting the interview is prohibited; it the interviewee is not covered, conducting the interview is part of the lawyer’s duty of diligent representation, and she should actively seek whatever legitimate advantage may be had by conducting the interview outside the presence of opposing counsel. Yet, it is difficult to determine which path to take when the situations where these principles are to be applied are varied and often unclear before the interview./20/
I. B. How the Pleadings Limit Discovery
The Federal Rules of Civil Procedure specify the general scope of discovery as follows:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii)./21/
Broadly speaking, the scope of discovery is determined by the parties to the action, the theories of relief and defense offered, and the facts or injuries alleged. The 2000 amendments to Rule 26 of the Federal Rules of Civil Procedure narrowed the scope of presumptively allowable discovery from that which is “relevant to the subject matter involved in the pending action” to discovery that is “relevant to the claim or defense of any party.”/22/ There is no precise dividing line between discovery relevant to claims or defenses and discovery relevant to the subject matter./23/ The “relevance” standard itself remains broad./24/ While courts have ruled that the amendments do somewhat narrow the scope of discovery, the amendments were not intended as a dramatic alteration in the traditionally broad standard that favors liberal disclosure./25/ The rule change has, however, led courts to carefully analyze discovery requests with reference to the asserted claims and defenses of the parties./26/ It additionally “signals to parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.”/27/ The district court in Thompson v. Department of Housing and Urban Development may have expressed the most utilitarian approach:
Lest litigants and the court become consumed with the philosophical exercise of debating the difference between discovery relevant to the "claims and defenses" as opposed to the "subject matter" of the pending action--the juridical equivalent to debating the number of angels that can dance on the head of a pin--the practical solution to implementing the new rule changes may be to focus more on whether the requested discovery makes sense in light of the Rule 26(b)(2) factors, than to attempt to divine some bright line difference between the old and new rule. Under this approach, when confronted with a difficult scope of discovery dispute, the parties themselves should confer, and discuss the Rule 26(b)(2) factors, in an effort to reach an acceptable compromise, or narrow the scope of their disagreement./28/
Rule 26(b)(2) further specifies several factors potentially limiting the scope of discovery. The Rule states, in relevant part:
The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).
The first two subparts of Rule 26(b)(2) present guidelines for a court’s assessment of claims that compliance with a discovery request would be unreasonably burdensome. The third sub-part sets out a principle of “proportionality” that directs the court to conduct a balancing test to determine whether limits should apply to the scope of requested disclosure in cases where the costs of discovery would outweigh its likely benefits to the litigation./29/
For good cause shown, a court may allow the same scope of discovery as had been available under the prior version of the Rule – “any matter relevant to the subject matter involved in the action”./30/ Speculative or conclusory allegations of good cause, however, will not be sufficient, absent supporting facts./31/ As was the case prior to the 2000 amendments, a significant overall factor to bear in mind is that the information sought in discovery “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”/32/
The amendment of Rule 26(b)(1) may encourage plaintiffs to plead as many claims as possible within the limits of Rule 11. It may also encourage plaintiffs to plead more facts, because doing so triggers the defendant’s obligation in its answer to admit or deny the allegations and plead other defenses that help determine the scope of discovery./33/
I. C. Mandatory Initial Disclosures
In most cases, Rule 26(a)(1) requires each party at the outset of litigation to automatically make significant, self-executing “initial disclosures” in writing, without waiting for formal discovery requests from the opposing party. Without waiting for formal discovery requests, parties must identify witnesses and documents “that the disclosing party may use to support its claims or defenses,” a computation of damages, and information regarding insurance agreements./34/ “Use” is broadly construed to include use in discovery, to support a motion, or at trial, but it excludes information used solely for impeachment./35/
This mandatory disclosure requirement does not apply in three situations:
- if otherwise stipulated;
- if otherwise directed by court order, and
- in certain Rule 26(a)(1)(E) categories of proceedings, the most significant of which, for purposes of legal services litigation, is “an action for review of an administrative record.”/36/
A “major purpose” of the initial disclosure requirements, as declared when first added to Rule 26 in 1993, was to “accelerate the exchange of basic information about the case” which is “needed in most cases to prepare for trial or make an informed decision about settlement.”/37/ Failure to make these disclosures may result in exclusion of the material that should have been disclosed./38/ “Counsel who make the mistake of treating Rule 26(a)(1) disclosures as a technical formality, rather than as an efficient start to relevant discovery, do their clients no service and necessarily risk the imposition of sanctions.”/39/ A limited number of cases have addressed the required level of specificity of the Rule 26(a)(1) initial disclosure obligations./40/
The disclosures must be signed and served (but not filed with the court), and “must be made at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order,” or unless a party otherwise objects to making the disclosures./41/ The Rule 26(f) conference, discussed below, must be held at least 21 days before a scheduling conference is held or a scheduling order is due. Additional disclosures later in the case are mandated by Rule 26(a)(2) (expert testimony) and 26(a)(3) (pretrial disclosures). These disclosures are usually governed by an order of the trial court.
A party and his attorney have a duty to supplement or correct initial disclosures “if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”/42/ Incomplete investigation or failure of an opponent to make disclosures is not an excuse for failing to make these disclosures yourself./43/ The disclosures must be signed and served, but not filed, and “must be made at or within [fourteen] days after the Rule 26(f) conference unless a different time is set by stipulation or court order.”/44/
Advocates will need to carefully assess their options when receiving inadequate initial disclosures from the opposing party. Depending upon the nature and critical need at the outset of litigation for these disclosures, the expense, delay and effort necessary for a challenge to their sufficiency will need to be weighed against seeking the information through other discovery devices./45/
I. D. Conference of Parties, the Joint Discovery Plan, and Discovery Planning
At a meeting referred to as a “Rule 26(f) conference,” counsel and unrepresented parties must, among other tasks,“ confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed discovery plan.”/46/ The discovery plan of the parties is supposed to address “the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues,” as well as any limitations on discovery and any protective orders that may be needed./47/ A joint written report of the conference must be submitted to the court within fourteen days of the conference. Be sure to check your local rules and your judge’s individual practice regarding Rule 26(f) conferences and their reports./48/
Apart from the discovery plan that must be discussed with opposing counsel, you must develop your own internal plan, which should be reviewed and revised as the litigation progresses. Successful discovery requires that you identify what you must prove as early as possible. The plan should identify the facts that you must prove, the discovery tools most likely to assist in proving those facts, and a sequence for using the various discovery tools. As you accumulate information, you must maintain a carefully organized file that shows both the content and the source of every document. As the case develops, continue to identify the facts that you can prove and how you will prove them. In more complex litigation, you may find it useful to create a computerized database of documents and potential testimony.
The discovery plan should set forth the sequence of discovery. If you anticipate protracted discovery, you should begin it promptly and proceed in stages. Some basic information should be given automatically under the Rule 26(a)(1) initial disclosures. You can then use carefully drafted interrogatories to identify other documents and their respective custodians, potential witnesses, and any basic facts that are not subject to being shaped by opposing counsel. Next, request production of documents and, when appropriate, request admissions. Last, depose important witnesses and again consider requests for admission. In a class action, early discovery should also establish the existence of a class and, when feasible, the identity and addresses of class members. As you complete each stage in your discovery plan, you should review and modify it to reflect what you have learned.
The amount, order, and type of discovery needed varies from case to case. In many instances, however, recurring issues make it possible to borrow liberally from discovery requests used in similar cases. National support centers may have forms available. In an appropriate case, form books on discovery, particularly American Jurisprudence Proof of Facts, may be helpful. Charles A. Wright, Arthur R. Miller, and Edward H. Cooper’s Federal Practice and Procedure forms can be helpful, and forms are becoming increasingly accessible on the Internet. Recognize the limitations of forms: they save time, but they were not written with your specific case in mind. Use them as a beginning rather than an end.
There is danger in not using discovery tools to the fullest extent. The arsenal of discovery devices authorized by the federal rules is formidable. If you are unfamiliar with the full potential for discovery, you may overlook important opportunities. Discussing discovery with more experienced counsel is always worthwhile. The underutilization of discovery is especially common in test case litigation, where a focus on critical legal issues may obscure the need for thorough discovery. Impact litigation is often dependent upon compelling facts that convince the court that its intervention is necessary to correct a systemic injury. Discovery is vital to finding the facts to make a record as the foundation for successful litigation.
I. E. Written Discovery
Interrogatories, as well as requests for production, are often the first discovery tool to be used.
I.E.1. Interrogatories
Except with leave of court or by stipulation, interrogatories may be served only after the Rule 26(f) conference discussed above./49/ They can be directed only to other parties, who then have thirty days to respond./50/ Because courts expect parties to generally manage and conduct their own discovery absent necessary court intervention,/51/ filing discovery requests and responses with the court is actually prohibited by Federal Rule of Civil Procedure 5(d), except in connection with trial or certain motions, such as motions to compel, for protective orders, or for summary judgment. This includes interrogatories, requests for production of documents, requests for admissions, and deposition transcripts.
Interrogatories are best used for limited, specific purposes. They establish a basis for subsequent discovery by production or deposition. Thus, interrogatories typically seek the addresses and names of persons having knowledge of relevant matters, the identity of people having certain authority or occupying certain offices, the existence, location, or accuracy of documents and reports, statistical data or summaries, and the identity and opinions of experts. Interrogatories may accompany requests for admissions and ask the basis for and facts supporting any denials. Rule 26(b)(2) now prohibits local rules limiting the number of interrogatories or depositions. Instead Rule 33(a) limits the number of interrogatories that may be served upon any other party to twenty-five, “including all discrete subparts,”/52/ but the court may authorize additional interrogatories if the factors specified in Rule 26(b)(2) warrant them./53/ Plan interrogatories with great care; do not waste the limited opportunity to use interrogatories on questions of marginal value.
Effective interrogatories are short, to the point, and unambiguous. They should be drafted to anticipate and avoid useless responses and valid objections. If possible, they should require the opposing party to give some relevant elaboration to the answers. Good interrogatories commit the opposing party to clear answers or information. Remember that, although interrogatories are directed to a party, an attorney prepares the answers. Broad, unstructured interrogatories give opposing counsel an opportunity to provide answers framed in the best possible light for their clients. Before serving your interrogatories, test them by trying to frame an objection to each one and by trying to compose an answer that would be responsive but useless.
These answers are to be drafted after a reasonable inquiry, which may involve asking agents, reviewing documents, and engaging in other reasonable investigations./54/ Discovery is not objectionable simply because the information sought is already known by the party propounding the interrogatories./55/ Nor is an interrogatory objectionable simply because it seeks an opinion or application of law to fact./56/ The court may, however, impose limits on discovery if it becomes “unreasonably cumulative or duplicative.”/57/ Other valid objections include that
- the meaning of the interrogatory is unclear,
- the interrogatory seeks a legal conclusion,/58/ or
- the expense of responding to the interrogatories outweighs the likely benefit./59/
Objections must be stated with specificity./60/
Rule 33(d) allows a responding party the option to provide business records as an answer to an interrogatory if an examination, audit, or inspection of the records will yield a proper response, and the burden of deriving or ascertaining the answer from these records is substantially the same for both parties. The responding party is then allowed to answer by specifying, in detail, the responsive records and giving the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the documents, and to make copies, compilations, abstracts, or summaries./61/
As with initial disclosures, a party and his attorney have a duty to “seasonably” supplement or correct answers to interrogatories “if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”/62/
A sample set of interrogatories in the Lightfoot v. District of Columbia case is provided as ocument 9 in the Documentary Supplement to this Manual.
I.E.2. Requests for Production of Documents
Federal Rule of Civil Procedure 34(a) permits a party to request documents or materials or to inspect and copy “tangible things” that are in the respondent’s “possession, custody or control.” Like interrogatories, requests for production can be directed only to parties./63/ Rule 34 governs such requests whether filed separately or in conjunction with a deposition./64/ Unlike interrogatories and depositions, the federal rules do not impose any numerical limits on the number of requests for production.
Rule 34 defines “documents” expansively, to include ‘writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form. . . .”/65/ The request itself should also define the term “documents” broadly and should specifically refer to electronic data. The “federal courts have consistently held that documents are deemed to be within the ‘possession, custody, or control’ for purposes of Rule 34 if the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand.”/66/ The “agency” aspect to Rule 34 can require a party to produce a document turned over to counsel./67/ The party seeking production of documents bears the burden of establishing the opposing party’s control over those documents./68/
Rule 34(b) requires that requested documents be described by “individual item or by category” with “reasonable particularity.” Do not simply request “all relevant documents.” Such a request is probably objectionable;/69/ more important, it permits your opponent to determine unilaterally what is relevant. Make as many requests as reasonably specific as you can, and include requests describing documents by category or conduct. Ask for production of original documents together with copies that contain any handwritten notes or changes, as well as all subsequent versions of the documents that are not identical to the initial one.
Rule 34(b) requires the opposing party to object or file a written response that “shall state, with respect to each item or category, that inspection and related activities will be permitted as requested.” Many lawyers fail to file the required response; they assume that actual production is all that is required. Insist on a written response describing what is being produced and what is not produced; this should protect you against the later appearance of a document not previously produced. If your request was drafted with care, you may be able to exclude from evidence surprise documents clearly encompassed within its terms. The response may also indicate that requested documents do not exist—a fact that may be quite significant in establishing an element of your case such as arbitrary action or negligence./70/ Follow up these responses with requests for admission to confirm the nonexistence of the documents.
The response to a request for production may be an objection or a motion for a protective order./71/ As with objections to interrogatories under Rule 33, objections to Rule 34 requests for production “must be stated with particularity in a timely answer, and . . . a failure to do so may constitute a waiver of grounds not properly raised, including privilege or work product immunity, unless the court excuses this failure for good cause shown.”/72/ If the objection includes that the requests are burdensome or unduly intrusive, the court is likely to balance the need for the information by the party seeking discovery with the harm to the party opposing it./73/ If only the expense of copying documents is involved, you may offer to do the copying. If the expense is related to reviewing the respondent’s files, you may again offer to undertake the review.
Conversely you may receive objectionable discovery requests. Ordinarily your response to improper requests for production, requests for admission, and interrogatories should be to object, specifying your grounds with precision. It is rarely necessary to move for a protective order.
Occasionally, as a form of obstruction or harassment, parties respond to a request for production by turning over a large volume of unreviewed, unsorted materials and documents. Because Rule 34(b) requires the producing party to sort or label documents to correspond with the categories in the request, or to otherwise produce them as they are maintained in the usual course of business, the production of a mass of unsorted material violates the rule./74/ If this happens, you should move to compel discovery under Rule 37(d). Although most trial courts prefer not to supervise the discovery process actively, production that clearly violates the obligation to particularize a response should lead to relief. Confronted with a respondent who has foisted a huge mound of unsorted materials upon the requesting party, a court should order the respondent to particularize the response and may ultimately impose sanctions on a party who fails to do so./75/
The ultimate goal of production is to generate admissible evidence. Although parties customarily stipulate to the authenticity of documents that they produce, authenticity or source is sometimes in doubt. In such a case, the requesting party may later submit requests for admission to establish authenticity, simplifying the admission of those documents into evidence./76/ Documents can also be authenticated at a deposition.
As with initial disclosures and interrogatories, a party and his attorney have a duty to supplement or correct responses to requests for documents “if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”/77/ Production of documents from a nonparty requires the use of the subpoena procedure set forth in Rule 45(a)(1)(C).
A sample set of Requests for Production in the Lightfoot v. District of Columbia case is provided as Document 10 in the Documentary Supplement to this MANUAL.
I.E.3. Requests for Admission
Requests for admissions issued pursuant to Federal Rule of Civil Procedure 36 are a useful but often underused tool. They constitute written requests for the admission of “the truth of any matters within the scope of Rule 26(b)(1)” for purposes of the pending action only, and as with interrogatories and requests for production, they may only be directed to parties./78/ Rather than principally discovery devices they are instead a means to define and limit the matters in controversy between the parties./79/ Requests for admission are intended to relieve the parties of the time and cost of proving facts that will not be disputed at trial. To be useful, requests for admissions must be precise. They must be phrased in such a way as to be admitted or denied./80/ They may cover facts or mixed questions of fact and law, but not pure questions of law./81/ Authority is split as to whether requests for admission seeking interpretations of documents are improper./82/
Although documents produced in response to a request for production can sometimes be authenticated through use of the party’s written reply, the better practice is for the discovering party to request that authenticity be admitted. A request for admission may relate to origin, authenticity, accuracy, or contents of the document./83/ Rule 36(b) states: “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Such permission is occasionally granted./84/ A request for admission that is not answered within thirty days after service of the request is deemed admitted./85/
Rule 36(a) further provides that “an answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.”/86/ While a denial must “fairly meet the substance of the requested admission,” the responding party is also allowed in “good faith” to “qualify” an answer, or to qualify or deny part of the matter and specify which of the remainder is true./87/ Stating its reasons, the responding party may also object to the requested admission./88/
The propounding party may move to compel if unsatisfied with the sufficiency of the answers or objections given. If the court determines that a response is noncompliant with he rule, it can either order that the matter is admitted, or compel an amended answer./89/ Subject to specified conditions, a requesting party having to prove the truth of a matter or the genuineness of a document requested under Rule 36 may seek reasonable costs, including attorney fees, if the responding party failed to make the appropriate admissions./90/ Unlike interrogatories, the number of requests for admission is not limited by the federal rules but may be limited by court order or by local court rule./91/
A sample set of Requests for Admissions in the Lightfoot v. District of Columbia case is provided as Document 11 in the Documentary Supplement.
I.F. Depositions
Federal Rule of Civil Procedure 30 permits a party to take an oral deposition under oath of any person, including individuals who are not parties. Absent written stipulation of the parties, Rule 30(a)(2)(A) limits parties to ten depositions without having to obtain leave of court./92/ The rule further limits a deposition to one day of seven hours of actual deposition time (excluding breaks) unless the parties otherwise agree or the court allows additional time “if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination.”/93/ A party requesting extension of the seven-hour limit must show good cause. Factors that might be considered in the good cause determination include: (1) the need for an interpreter; (2) the need to examine the witness about events occurring over a long period of time; (3) the need to question the witness about numerous or lengthy documents; (4) if the examination reveals that documents have been requested, but not produced; (5) the need for the deponent’s own attorney to ask questions, and (6) the need to fully explore the theories upon which an expert witness relies./94/ As a result, the deposing party is advised to facilitate time-efficient depositions by sending documents to the witness’s attorney to review in advance of the deposition. If the witness fails to do her homework, or if a witness stonewalls, this may be grounds for asking for an extension of the time limit or sanctions or both. Similarly, you should ask the deponent to hand over subpoenaed documents in advance of the deposition and note that this may alleviate the need to exceed the time limit./95/ According to the Advisory Committee Notes, when organizations are deposed pursuant to Rule 30(b)(6), each person designated as a witness is subject to a separate seven-hour time limit on his deposition./96/
Depositions can be enormously helpful but are expensive. Unlike other discovery tools, depositions may be taken of any witness, and, unlike answers to interrogatories and requests for production, responses in depositions come directly from witnesses or parties, without screening or filtering by opposing counsel. Testimony during a deposition is under oath and may be used on a motion for summary judgment or as evidence or for impeachment at trial. Because a deposition may be accompanied by a subpoena duces tecum, it also serves as a method of document discovery from nonparty witnesses./97/
I.F.1. Taking Depositions
Depositions are arranged using a notice of deposition—a standard document designating the location and time for the deposition, along with other specified information required by Rule 30./98/ An example of a deposition notice in the Lightfoot v. District of Columbia case is Document 12 in the Documentary Supplement. To avoid scheduling conflicts, consult opposing counsel to determine an agreeable time. When deposing a party, a subpoena is not required; service of the notice on opposing counsel is all that is necessary. If the party is a corporation or governmental entity and you are unsure whom to depose, you can, as described further below, instruct the party to designate witnesses with knowledge of the areas into which you propose to inquire./99/
When deposing a nonparty witness pursuant to Rule 45, draft or obtain a subpoena and give notice to the other parties. You may issue the subpoena in the name of the court in which the action is pending if you are admitted to practice in that district. When the deposition is to be taken in another district, you may issue the subpoena in the name of the court in that district, provided that you are admitted in the district in which the action is pending./100/ Serve the subpoena and a copy of the notice, with a check to cover witness fees and travel costs, on the witness to be deposed (service on the witness’s attorney is not sufficient, unless, as a practical matter, you are able to obtain agreement of counsel to accept service)./101/ You must pay these expenses even when the plaintiff is proceeding in forma pauperis./102/
Select a court reporting service for a stenographer. Although some jurisdictions permit tape recording, and counsel may stipulate to a tape recording to be transcribed by one of the attorney’s secretaries to save expense, this practice rarely works well. The best recourse is to employ a reporter and then to order only necessary portions of the transcript. If you intend to order less than the complete transcript, you must organize your questions to cover all aspects of a particular subject at the same time. Depositions may also be videotaped, but this is rarely done unless the deposition is intended as trial testimony. A videotaped deposition is more effective as evidence than having a transcript read in court, but live testimony will best hold the fact finder’s attention.
Depositions typically take place in the office of the deposing party’s attorney. However, the deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business, subject to considerations of expense./103/ A number of reporting services and courthouses have facilities for depositions; these may be more convenient and may provide a more authoritative setting. Depositions may be conducted by telephone when long distances are involved and travel expenses need to be minimized. An obvious drawback is the inability to observe the deponent in person. An alternative, albeit an expensive one, is the use of video conferencing./104/
When you want a party to bring documents to the deposition, a request contained in the notice of deposition, rather than a subpoena, is sufficient. If you want a witness to have ready access to additional records, you may prefer to take the deposition at the witness’s office. However, the 30-day document production time period of Rule 34 applies to requests for documents under Rule 30(b)(5). Unless the deposition is scheduled for more than 30 days from the date of the deposition notice, you can avoid this delay and issue a subpoena duces tecum, even to a party./105/ Sequestration of witnesses during a deposition is no longer the norm. Other witnesses may attend unless a specific showing of harm is made./106/
In preparing for a deposition, begin by defining your objectives. Is your primary goal to determine what the witness knows? To learn the details of the adversary’s case in order to prepare better to rebut it? To commit the witness to testimony favorable to your position for a record for summary judgment? Whatever your goal, you should prepare for the deposition by outlining a series of questions or areas of inquiry, checking off each question or area as you cover it. Do not, however, fall into the trap of asking only questions developed in advance; you must listen carefully during the deposition. Inevitably the answers you get will suggest questions that you did not think of before the deposition. Be prepared to depart from your outline when necessary, so you can thoroughly explore lines of questioning suggested by the deponent’s answers.
Most depositions open with two sets of preliminary rituals. The first concerns stipulations, some of which may vary with local practice. Some attorneys propose stipulations that are already mandated by federal rule unless otherwise stated, such as waiver of irregularities in the notice and defects in the qualification of the officer before whom the deposition is taken./107/ If the opposing party is requesting the “usual stipulations,” be sure to ask, at the outset, precisely what is encompassed by them. Stipulations may also waive the witness’s right to read and sign the transcript before it is submitted to the court. Federal Rule of Civil Procedure 30(e) requires review of the transcript by the witness only if requested by a party before completion of the deposition. Do not permit your own witness to waive review and signature because doing so may prevent him from amending, correcting, or revising by affidavit his testimony before trial./108/
The second preliminary but very important ritual is for the deposing attorney to state certain ground rules to the witness. You should introduce yourself and indicate the party whom you represent. After the reporter swears the witness, explain to the witness on the record that the testimony is under oath and must be both accurate and complete. Instruct the witness that if the witness does not understand a question, the witness should say so in response, and you will rephrase the question. Similarly the witness should be advised to explain or clarify any answer that the witness feels needs explanation or clarification. This not only helps prevent embellishment of testimony at trial but also may give you leads for additional inquiry. Explain to the witness that an answer must be given by spoken words and not simply by a gesture, nod, or “mmhmm.” Ask whether there is any reason why the deponent cannot testify fully and accurately./109/
Experience teaches that depositions are best conducted in an accommodating, friendly manner. The best deposition is one in which the witness cooperates. A hostile, abrasive, or overbearing manner discourages cooperation. A confused, interrupted, belligerently conducted deposition does not generate a useful transcript. Moreover, it solidifies hostilities and may impede settlement.
Do not settle for ambiguous answers; follow up and insist on an answer. Remember that a reporter cannot transcribe accurately when several people speak simultaneously. Do not allow attorneys to answer questions in the guise of an objection, thus testifying in place of the deponent. The informal setting of a deposition often leads to going “off the record” more often than in a courtroom, with the result that valuable information may not be recorded. To assure the production of a useful transcript, be cautious about going off the record.
The first objective in most depositions is to discover what the witness knows. To further that objective, begin the deposition much like an interview: start by having the witness identify herself, her position, background, and involvement and detail what she did or experienced relevant to the case. Inquire of the witness’s knowledge about other witnesses, the parties generally, and potential sources of evidence. After allowing the witness to give narrative answers to questions framed to elicit elaboration, you should go back through the testimony, pinning down dates, locations, persons present, documentation, and other ways of fixing the testimony and using it as a source for further investigation or discovery. Only then should you seek, if at all, to confront the witness with adverse examination, particularly that which develops motive or exposes hostility. Along the way, acquaint the witness with matters developed previously through discovery or produced by the witness in response to a subpoena duces tecum. Ask the witness to identify the matters, agree with and substantiate them, or indicate her inability to do so and explain why.
Mark in advance with an exhibit number all documents you intend to use during a deposition. You will be identifying these documents for use at the deposition. They are not being offered as evidence for purposes of dispositive motions or for trial. Whenever possible, have three sets of marked documents—one for the witness, which the reporter should retain, one for opposing counsel, and one for yourself. To ensure that the transcript is clear, always refer to documents by their exhibit number.
Objections to the competency, relevancy, or materiality of testimony can but need not be made during a deposition; they can be raised later at trial. The only objections waived if not made during the deposition are those relating to the form of questions, privilege, and errors that could have been corrected during the deposition itself./110/ Because objections are preserved for trial, the deposing attorney should seek during the deposition to respond, if possible, to the objection by curing any defect, such as a defect regarding the form of the question. An objection that is not cured precludes the use of the answer at trial.
There are behavior norms for attorneys during depositions: “[i]n general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.”/111/ Some attorneys engage in obstructive behavior, particularly with young opposing counsel. You have to cope with opposing counsel’s harassment in order to prevent interference with your ability to elicit appropriate testimony from the witness. A common harassment technique is to make “speaking” objections in a manner that offers the witness a hint as to how to respond. This tactic is not permissible. Rule 30 states: “Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).”/112/ An attorney is prohibited from attacking every question posed by opposing counsel so as to prevent elicitation of any meaningful testimony from the witness./113/ Cases of particularly egregious attorney misconduct can lead to severe sanctions./114/ However, it is not improper for an attorney to raise reasonable, non-waivable objections.
Another frequently encountered tactic is for defending counsel to request frequent breaks with the witness. This pattern of conduct should be strenuously resisted. As one court has held, "conferences between witness and lawyer are prohibited both during the deposition and during recesses" unless “the purpose of the conference is to decide whether to assert a privilege."/115/ While agreeing that private attorney –witness consultations between questions and answers are impermissible except for the purpose of determining privilege issues, other courts have rejected a bright line rule barring all witness-lawyer conferences during the deposition./116/
Personal remarks and ad hominem attacks on opposing counsel are inappropriate and may be sanctioned./117/ The lawyer for the witness is not an intermediary for interpreting questions./118/ If necessary, you may seek a judicial ruling granting a protective order pursuant to Rule 30(d)(4), or file a motion to compel pursuant to Rule 37(a), as appropriate, but doing so may interrupt or delay the deposition./119/ The federal magistrate or judge assigned to the case (or in the district in which the deposition is held) often makes herself available to resolve these types of disputes, sometimes by telephone. In some jurisdictions, however, interrupting a deposition to move to compel may delay the deposition for weeks or months as you await a ruling./120/ If possible, learn the local practice from other counsel or the judge’s clerk before deciding whether to interrupt a deposition./121/
I.F.2. Defending Depositions and Preparing Witnesses
The four key steps to follow in order to prepare a witness for deposition are: (1) Review your entire file, not just the pleadings, to anticipate questions that the witness will be asked. (2) Meet with the witness to review the deposition process, including the preliminaries and breaks, the facts, documents about which you expect her to be asked, and the questions that you expect will be asked, including the most difficult issues that are likely to be covered. (3) If the witness is shaky or would feel more comfortable, have another attorney conduct a mock cross-examination of the witness. Try to keep this practice session as formal as possible, and use a tape recorder to simulate the presence of a court reporter. (4) Advise the witness how to dress for and conduct herself during the deposition. A sample set of instructions is set forth below./122/
Instructing a witness not to answer a question should rarely be necessary. Except when the inquiry intrudes into privileged areas, or when the inquiry is both irrelevant and embarrassing, simply object and permit the witness to answer. If a witness is instructed not to answer, the deposition may proceed to other matters; deposing counsel can seek an order compelling discovery from the court later. Alternatively, the deposition may come to a halt while such relief is being sought, to resume at a subsequent time if a magistrate judge is not promptly available. This is rare; interrupting the deposition is necessary only where the objection precludes all useful inquiry or where the witness will soon become unavailable.
The strategic use of legitimate objections may be highly useful even if the objection would not be waived by not being made. As noted above, this is not per se improper, although at some point it could become abusive. An objection may signal to the witness to be cautious before responding to the question or may give her an opportunity to think through her answer more carefully before giving it. On the other hand, advocates can also signal a weakness in their case by pointedly objecting to a line of questioning.
In defending a deposition of your client or of a friendly witness, you must also decide whether to ask questions at the conclusion of direct examination. Although many lawyers, reasoning that explanations or rehabilitation may be offered at trial, forgo “redirect” of their witnesses, do not automatically decline this opportunity. Whenever the examination of your witness produces damaging testimony that can be explained, obtain the explanation in redirect. A later explanation is not precluded, but it is more easily dismissed as the work of the lawyer than one elicited during the deposition on the very same day as the apparently damaging statement. Waiting until trial to rehabilitate your witness is particularly hazardous for two reasons. First, an explanation offered at trial, after your witness has been impeached or even in anticipation of impeachment, may look contrived. Second, before trial, the deposition of your witness may become part of an adverse motion for summary judgment. Should that happen, your witness will have no other opportunity to testify, although an explanatory affidavit may be permissible, at least if the witness noted a correction on his “errata sheet.”
An errata sheet presents the next best chance, apart from changes made at the deposition itself, for a witness to amend his testimony. The witness may create an errata sheet when the transcript is submitted to him for review, but, under Rule 30(e), submission to the witness occurs only if the deponent or a party affirmatively requests it before completion of the deposition. Rule 30(e) also permits the deponent to make “changes in form or substance” in his transcribed testimony./123/ To be effective, however, the changes must be supported by reasons and must be made within thirty days of submission of the transcript to him./124/ The changes are appended to the deposition, although the original testimony stands as well. Again, however, this approach will be less convincing to the trier of fact than testimony amended at the time of the deposition.
I.F.3. Depositions of Organizations
Depositions of individuals who can speak on behalf of organizations are separately addressed in the Federal Rules of Civil Procedure. Rule 30(b)(6) allows you to name as the deponent, in a deposition notice or subpoena, “a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested.” This in turn triggers the obligation of the named organization to “designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf” to appear at the deposition on behalf of the organization./125/ Admissions of these individuals are regarded as admissions of the entity on whose behalf they are testifying./126/ If the designated witness does not have knowledge regarding one or more of the topics identified for deposition, the entity must select additional witnesses who do have this information./127/
The rules and principles regarding depositions described above also apply fully to depositions of organizations. Pursuant to Rule 30(b)(6), the person designated by the organization is to testify “as to matters known or reasonably available to the organization.” Once an organization designates a witness on its behalf, the scope of the inquiry is further governed by the general scope of discovery, and is not limited to the specific areas identified in the notice of deposition./128/ Nonetheless, the Rule 30(b)(6) deposition must “describe with reasonable particularity” the topics of inquiry so that the responding party will be able to identify appropriate designees./129/ Indeed, in one respect, organizations producing Rule 30(b)(6) deponents have a greater responsibility than other deponents. The organization responding to a Rule 30(b)(6) deposition notice “must prepare deponents by having them review prior fact witness deposition testimony as well as documents and deposition exhibits.”/130/ Even if the documents are voluminous and the review of those documents would be burdensome, the deponents are still required to review them in order to prepare themselves to be deposed./131/ Such preparation is necessary because the individuals so deposed are required to testify not only as to their own knowledge, but also as to the knowledge of the corporation./132/
An example of a Rule 30(b)(6) deposition notice in the Lightfoot v. District of Columbia case is Document 13 in the Documentary Supplement.
I.G. Electronic Discovery
The area of “electronic” or “digital” discovery is rapidly evolving and is the subject of a great deal of commentary./133/ Proposed amendments to Rules 16, 26, 33, 34, and 45 of the Federal Rules of Civil Procedure should also provide, when enacted, significant guidance to practitioners facing a variety of issues. This guidance should include the definition of discoverable electronic material, how to address electronic issues early in litigation, discovery of digitally stored information that is not readily or reasonably accessible, procedures for asserting work product and attorney-client privileges, and potential sanctions for the loss of electronically stored information that is the subject of discovery./134/
Under the current rules, document discovery includes “data compilations from which information can be obtained, translated if necessary, by the respondent through detection devices into reasonably usable form.”/135/ Without clear direction to date in Federal Rule of Civil Procedure 34, the courts have struggled with whether producing computer files in hard copy or an electronic form navigable by the recipient is sufficient./136/ Deleted computer files, whether emails or otherwise, are discoverable./137/ The procedure utilized to permit one party to attempt to resurrect data deleted from the other’s computer equipment may vary. Some courts require the party seeking discovery first to submit an affidavit from a computer expert regarding the feasibility of recovering deleted e-mails without damage to the opposing party’s computer. Subsequently a computer expert specializing in the field of electronic discovery may be appointed to create a “mirror image” of the defendant’s hard drive./138/ Possibly privileged information must also be protected./139/
In a series of rulings in the Zubulake v. UBS Warburg litigation, Judge Scheindlin of the Southern District of New York has issued a series of noteworthy decisions regarding various aspects of electronic discovery. For example, in the initial Zubulake decision that the plaintiff was entitled to discovery of relevant, deleted emails that were archived on backup disks, Judge Scheindlin outlined seven factors (in order of importance) to determine which party would bear the cost of electronic discovery: (1) the specificity of the request, (2) the availability of information from other sources, (3) the cost of production in relation to the amount in controversy, (4) the cost of production in relation to the resources of each party, (5) the ability of each party to control costs, (6) the importance of the issues to the case, and (7) the relative benefits to the parties of obtaining the information./140/ Other rulings in Zubulake have included: (1) compelling production of additional emails on backup tapes, with specified cost-shifting between the parties;/141/ (2) requiring that, “once a party reasonably anticipates litigation,” it must “put in place a ‘litigation hold’ to ensure the preservation of relevant documents” that are accessible;/142/ (3) imposing various duties upon counsel to implement and oversee the maintenance of the party’s “litigation hold,” including becoming familiar with the client’s document retention policies, learning how “key players” in the litigation stored information, producing information responsive to the opposing party’s requests, supplementing responses by ensuring the preservation of relevant information, instructing a party’s employees to produce electronic copies of their relevant active files, and making sure that all required backup media are identified and safely stored./143/ The Zubulake decisions may eventually prove influential in delineating guidelines for electronic discovery./144/
I.H. Expert Discovery
The federal rules “provide for extensive pretrial disclosure of expert testimony.”/145/ Rule 26(a)(2)(B) requires parties to disclose the names of their retained trial experts before trial and to give the opposing party a written report, prepared and signed by the expert witness. The report is required to be comprehensive. It must contain “a complete statement of all opinions to be expressed by the expert and the basis and reasons, therefore,” along with “the data or other information considered by the witness in forming the opinions,” exhibits, the expert’s qualifications (including publications authored within the preceding ten years) and compensation, and a listing of expert testimony during the preceding four years./146/ According to the Seventh Circuit, “A complete report must include the substance of the testimony which an expert is expected to give on direct examination together with the reasons therefor. . . Expert reports must not be sketchy, vague or preliminary in nature. . . Expert reports must include ‘how’ and ‘why’ the expert reached a particular result, not merely the expert's conclusory opinions.”/147/ The disclosures “shall be made at the times and in the sequence directed by the court,” but at least ninety days before trial if not otherwise directed./148/ However, the parties have an additional thirty days to disclose expert evidence intended solely to contradict or rebut evidence on the same subject matter identified in another party’s disclosures./149/ The “automatic sanction” for a violation of Rule 26(a)’s disclosure requirements is preclusion of the expert’s testimony, unless the violation was “harmless” or the non-disclosing party lacked “substantial justification.”/150/
In some cases, a thorough report may eliminate the need for the deposition of an expert. However, a deposition allows you to explore weaknesses in the witness’s background, knowledge, and opinions./151/ If a deposition is desired and you are able to afford the significant expense entailed, you may schedule it as soon as the expert is identified and the report is given./152/ By contrast, a party may generally seek discovery from experts who are merely retained or specially employed in anticipation of litigation or preparation for trial and who are not expected to testify only upon a showing of “exceptional circumstances.”/153/
Matters considered by experts, including documents given by counsel to the expert and the expert’s draft reports, are generally disclosable in their reports and discoverable. Draft reports may be discoverable even if they contain comments of non-testifying, consulting experts/154/ or counsel’s comments./155/ District courts have disagreed as to the discoverability of communications between counsel and experts in general./156/ Counsel’s own notes of her communications with an expert are generally viewed as non-discoverable work product./157/ If, however, counsel’s notes are furnished to the expert, the case law trend is to override even core opinion work product privilege and compel discovery of the attorney-expert communication./158/ Extreme caution should, therefore, be exercised before sending the expert anything in writing, whether by e-mail or otherwise. As with other discovery, timely supplementation of expert disclosures is required pursuant to Rule 26(e)(1). Supplementation of an expert report on the eve of trial is not permitted unless justified by good cause./159/
I.I. The Uses of Discovery
When information gathered during discovery supports new claims, new parties, or new relief, amend or supplement your pleadings. Occasionally discovery suggests that a claim is no longer viable or that a party should be voluntarily dismissed. In that event, file an appropriate document pursuant to Federal Rule of Civil Procedure 41(a).
More typically, the point of discovery is to generate usable evidence. Evidence from discovery may be particularly valuable in connection with seeking preliminary injunctive relief and summary judgment. Although motions for preliminary injunctions may require live testimony, they are sometimes granted (or denied) on the basis of documentary evidence including depositions or responses to requests for production./160/
In contrast, motions for summary judgment are considered exclusively on documentary evidence. Although Rule 56 speaks of affidavits submitted in support of or in response to the motion for summary judgment, in practice parties often rely extensively on depositions. Local practice may vary as to whether filing the transcript of the entire deposition is necessary; attaching excerpts to the motion for summary judgment or the memorandum in opposition is more frequently permissible.
Discovery by or from you sometimes facilitates settlement. The opposing party may be induced to settle in order to avoid the effort, expense, and possible embarrassment of responding to your discovery requests. Disclosure of harmful facts may encourage settlement. When you respond to discovery and show the strength of your case, the opposing party may also be encouraged to settle.
Discovery is essential in preparing for and conducting a trial. A deposition may be used to impeach a witness or may be offered into evidence as the testimony of a party, or of a witness who is unavailable for trial./161/ When offered to impeach the testimony of a witness, deposition testimony is admissible as substantive evidence rather than simply as evidence of the witness’s lack of credibility./162/ Requests for production and interrogatories also generate trial evidence, and requests for admission may pare down the issues that must be tried.
I.J. Shifting Costs of Discovery
Depositions can be expensive due to stenographers’ fees, videotaping costs, the fee of any expert whom you depose, and transportation and lodging for you to attend out-of-state depositions or to bring a witness to the deposition. In federal court at least one part of these deposition costs may be taxed in favor of the prevailing party./163/ Pursuant to Federal Rule of Civil Procedure 54(d)(1), this part consists of “fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case.”/164/ The Tenth Circuit has found that “Absent some other statutory authorization, costs available to a prevailing party under Rule 54(d)(1) are limited to those specified in 28 U.S.C. § 1920.”/165/ Taxation of such fees is permitted, and the concept of “necessarily obtained” gives the court substantial discretion to award or refuse to tax costs, within the statutory parameters of Section 1920./166/ These fees for a deposition are generally taxed as costs when the deposition is received in evidence, or if, within the discretion of the district court, special circumstances warrant a cost award, even though the depositions were not put into evidence or used at trial./167/ They also are so taxed when used in support of a successful motion for summary judgment./168/
I.K. Protective Orders
Protective orders may be sought in different contexts and with varying goals. In general, protective orders may be granted, upon motion by the party resisting discovery and “for good cause shown,” to avoid undue embarrassment, oppression, or expense, to protect private matters, and to protect trade secrets./169/ Before seeking such an order, the movant is required by Rule 26 to confer with the opposing party in an effort to resolve the dispute without court action./170/ If this effort is unsuccessful, the movant has the burden to show why a protective order is necessary, based on a particular and specific demonstration of fact ; the burden cannot be satisfied by stereotyped and conclusive statements./171/ “In deciding whether good cause exists, the court must balance the interests of the parties, taking into account the harm to the party seeking the protective order and the importance of the disclosure to the non-moving party . . . [in addition to the interest of the court] ’in moving this case efficiently along.’”/172/ The decision to enter a protective order is within the court’s discretion,/173/ including what degree of protection is necessary in the fashioning of the order./174/
Protective orders are sometimes sought to avoid producing responsive information completely./175/ Other times, particularly in the context of document production, protective orders are sought not to foreclose discovery but to prohibit further disclosure, limit use of the information to the case at hand, or require return of documents at the end of the litigation or all three. For example, in Title VII employment discrimination litigation, in which plaintiffs are required to demonstrate pretext, courts customarily allowed wide discovery of personnel files, subject to a protective order requiring that they be maintained in confidence, utilized only for purposes of the subject litigation, and returned or destroyed at the conclusion of the litigation./176/ An example of a Protective Order of this sort in the Lightfoot v. District of Columbia case is Document 14 in the Documentary Supplement.
Protective orders permanently prohibiting disclosure of documents produced in discovery are frowned upon except with respect to trade secrets./177/ As to such secrets, Rule 26(c)(7) specifies that the court may order “that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way.”/178/ Such an order may interfere with your ability freely to interview or depose current or former employees of an opposing party.
The general principles regarding protective orders set forth in Rule 26(c) apply, of course, to interrogatories as well. An additional objection that may be raised is that an interrogatory is a “contention interrogatory,” which is an interrogatory asking for a description of all facts on which a party bases its contention. Such interrogatories are not per se improper. However, answering them may be deferred until the end of discovery, until a pre-trial conference, or until a later time./179/ They may be objectionable as burdensome if they seek too much detail./180/
With respect to depositions, a protective order may be sought to bar entirely the taking of the deposition or simply to limit its scope or duration. Protective orders prohibiting a deposition from being conducted are unusual and require a showing of “extraordinary circumstances.”/181/ Some courts apply a balancing test, weighing the movant’s proffer of harm against the adversary’s significant interest in preparing for trial./182/ A claimed lack of knowledge is not a sufficient ground for a protective order./183/ Similarly “the fact that the witness has a busy schedule is simply not a basis for foreclosing otherwise proper discovery.”/184/ Such orders may, however, be granted in a number of different contexts:
· where it clearly appears that the information sought is wholly irrelevant and could have no possible bearing on the issue;/185/
· as to a high-level corporate executive who lacks unique or superior knowledge of the facts in dispute;/186/
· where the deposition would necessarily involve attorney work product,/187/ and
· as to an opposing party’s attorney, except where the party seeking the attorney’s deposition establishes no other means to obtain the information except to depose opposing counsel./188/
Depositions of high -ranking public officials may present special concerns./189/ A subpoena directed to a federal agency official may also encounter statutory and regulatory obstacles./190/
Once a deposition begins, a protective order may be sought regarding particular questions or conduct./191/ When a protective order is sought while a deposition is in progress, the motion may be presented to the court in which the action is pending or the court in the district where the deposition is being taken./192/ The latter court may, however, elect to transfer the dispute to the court where the action is pending./193/ Such a transfer is less likely when the protective order is sought by a nonparty who is being deposed./194/ The award of expenses in connection with a protective order is governed by Rule 37(a)(4).
I. L. Motions to Compel
Although the rules contemplate cooperative discovery, some lawyers unfortunately practice obstruction. Should you encounter late, incomplete, evasive, or ambiguous responses, or improper objections to discovery requests, you should write opposing counsel a demand for compliance, specifying a short time limit for a reply./195/ If a satisfactory reply is not forthcoming within your specified time limit, move under Rule 37(a) to compel discovery and, when appropriate, for sanctions. Rule 37(a)(2) requires any motion seeking to compel discovery (or to compel Rule 26(a) disclosures) to include “a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.” Never threaten unless you intend to act; you must follow through when dealing with obstruction or you will encourage more of it.
When you move to compel or for sanctions, you must explain clearly and simply what the dispute is about. You should begin by setting forth the discovery request, the improper response or objection, and your attempt to resolve the dispute. Then explain why you are entitled to discovery and why the discovery sought is important. Before filing your motion, check your local rules, which frequently specify how discovery materials are to be presented to the court in the context of motions to compel.
The district court has broad, discretionary power to impose a range of sanctions as consequences for a party’s failure to comply with discovery rules and orders, and its decision will be reversed on appeal only for an abuse of that discretion./196/ Rule 37 provides a spectrum of sanctions. The mildest is an order to reimburse the opposing party for expenses caused by the failure to cooperate. More stringent are orders striking out portions of the pleadings, prohibiting the introduction of evidence on particular points, and deeming disputed issues determined adversely to the position of the disobedient party. The most severe sanctions are orders of dismissal and default judgment./197/ Rule 37 sanctions provide a specific deterrent to those parties whose conduct warrants penalty, and a general deterrent to those contemplating abusing the rules of discovery. The sanctions “`must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.’”/198/
A party may move to compel disclosure, and may seek appropriate sanctions for a failure to make a disclosure required by Rule 26(a); for a deponent’s failure to answer a question; for failure to answer an interrogatory; or for failure to respond to a request for production./199/ If the court grants the motion, or if the requested discovery is provided after the motion is filed, the court “shall” “require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them” to pay the reasonable expenses involved in bringing the motion, including attorney’s fees./200/ The court may disallow costs and fees if it determines that the motion was brought without a good faith attempt to informally secure the discovery, if the non-disclosing party’s actions were “substantially justified,” or if “other circumstances make an award of expenses unjust.”/201/ Similar standards dictate the potential award of expenses against the moving party, if the motion is denied./202/ Apportionment of expenses among the parties is to be made “in a just manner” if the motion is denied in part and granted in part./203/ If the motion is denied in whole or in part, the court may further enter a corresponding Rule 26(c) protective order./204/
Failure to comply with discovery orders issued by the court carries potentially more severe consequences. Rule 37(b)(2), provides, in part, that "[i]f a party ... fails to obey an order to provide or permit discovery, including an order made [compelling disclosure or discovery] or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just...." In so doing, “The various sanctions listed in Rule 37 give the District Court ‘broad discretion to fashion appropriate sanctions for violation of discovery orders[.]’"/205/ In addition to the potential award of expenses and fees against the party, attorney, or both, these sanctions include, “among others the following”: (1) an order that designated facts are to be taken as established with reference to the claim of the moving party; (2) an order refusing to allow the noncompliant party to support or oppose designated claims or defenses, or prohibiting the party from introducing specified matters into evidence; and (3) an order striking out pleadings in whole or in part, staying further proceedings until compliance is obtained, dismissing the action in whole or in part, or issuing a default judgment against the disobedient party./206/
The court may also award these severe sanctions in cases of “total noncompliance” with discovery requests./207/ These “total concompliance” cases include, following proper service, a failure to appear at a deposition; a failure to serve answers or objections to interrogatories; or failure to serve a response to a request for production./208/ The failure to respond is not excused by the argument that the sought-after discovery is objectionable, unless the non-disclosing party has a motion for protective order pending./209/
The failure to provide the initial disclosures, expert witness reports, or pretrial disclosures of Rule 26(a), or the failure to supplement or amend a response pursuant to Rule 26(e)(1) or (2), may lead to the “automatic sanction” of preclusion. The non-disclosing party may be barred from using, at a trial, hearing, or motion, any witness or information not disclosed./210/ The party may evade the sanction if it had “substantial justification” for its failure to disclose, or if the failure is “harmless.”/211/ The court may additionally or alternatively award reasonable expenses, attorney fees, and “other appropriate sanctions,” including the Rule 26(b)(2) evidentiary and relief-based penalties described above./212/
Serious obstruction of discovery may result in an order precluding the admission of certain evidence./213/ Because issue-related sanctions are fundamentally remedial rather than punitive and do not preclude a trial on the merits, they do not require a heightened standard of proof. They may instead be imposed “whenever a preponderance of the evidence establishes that a party’s misconduct has tainted the evidentiary resolution of the issue.”/214/
Imposition of the ultimate sanctions for discovery abuse - the entry of a default judgment against the defendant and dismissal with prejudice against the plaintiff - generally requires a clear record of delay or contumacious conduct./215/ Where the guilty party engages in wholesale destruction of primary evidence regarding a number of issues and the district court cannot fashion an effective issue-related sanction, default or dismissal may be granted./216/ Courts of appeal also demand an explanation of why lesser sanctions were likely to be ineffective./217/ However, this does not mean that courts must first impose the lesser sanction./218/
Discovery problems can surface at trial when testimony changes and documents suddenly appear. When a witness changes testimony from that given at a deposition, you can impeach the witness on cross-examination. When, however, a document is produced that was not disclosed in response to a request for production or interrogatory, the producing party may argue that the request is unclear, that earlier production fully complies with the request, or that the material is newly discovered. Properly prepared document requests and interrogatories, as well as strategic requests for admission, protect against the first two arguments; thorough discovery requests should make the claim of newly discovered documents incredible.
Trial courts have broad discretion—ranging from granting a continuance to excluding a document—in dealing with surprise documents. However, unless you can show prejudice or willful, bad-faith failure to produce, the court is likely to allow the document into evidence. Your opposition to admissibility is stronger if the document was omitted from disclosure required in a pretrial conference; then the court is more likely to exclude it. The message is clear: discovery requires careful planning and execution and continuing vigilance.
An example of a motion to compel in the Lightfoot v. District of Columbia case is Document 15 in the Documentary Supplement.
1. For more guidance on pre-litigation factual investigation, see Chapter 1 of this MANUAL.
2. Model Rules of Prof’l Conduct R. 4.2 (2004).
3. In re Grievance Proceeding, No. 3:01GP6(SRU), 2002 U.S. Dist. LEXIS 18417, at *6, 2002 WL 31106389, at *2 (D. Conn. July 19, 2002) (Connecticut version of ABA Rule 4.2).
4. See Penda Corp. v. STK, No. Civ.A.03-5578, 2004 U.S. Dist. LEXIS 13577, at *14, 2004 WL 1628907, at *7 (E.D. Pa. July 16, 2004) (imposing sanction of preclusion of evidence obtained from unauthorized ex parte contact, but denying request for disqualification of counsel).
5. See generally, Susan J. Becker, Discovery of Information and Documents From a Litigant’s Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles, 81 Neb. L. Rev. 868 (2003); Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part 2), 70 Tenn. L. Rev. 321 (2003); Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part 1), 70 Tenn. L. Rev. 121 (2002); Donald J. Farage, Ex Parte Interrogation: Invasive Self-Help Discovery, 84 Dickinson L. Rev. 1 (1989); Eugene P. Gurr, Ethics of Conducting Ex Parte Interviews, 3 St. John's J. of Legal Commentary 234 (1988).
6. Model Rules of Prof’l Conduct R. 4.2 cmt. 7 (2004).
7. See Public Service Elec. & Gas Co. v. Associated Elec. & Gas Ins. Servs., 745 F. Supp. 1037 (D.N.J. 1990). This decision has been criticized in Andrews v. Goodyear Tire & Rubber Co., 191 F.R.D. 59, 71 (D.N.J. 2000), and superseded in New Jersey by amendment of the local rule. See Klier v. Sordoni Skanska Constr. Co., 766 A.2d 761, 769 (N.J. Super. Ct. App. Div. 2001).
8. See, e.g., Weeks v. Indep. Sch. Dist. No. 1-89, 230 F.3d 1201, 1209 (10th Cir. 2000), cert. denied, 532 U.S. 1020 (2001) (referencing a managing-speaking standard, but applying Fed. R. Evid. 801(d)(2)(D) to determine which employees “speak” for defendant university); Cole v. Appalachian Power Co., 903 F. Supp. 975, 979 (S.D. W .Va. 1995); Brown v. St. Joseph County, 148 F.R.D. 246, 254 (N.D. Ind. 1993).
9. See Fed. R. Evid. 801(d)(2)(D).
10. See Chancellor v. Boeing Co., 678 F. Supp. 250, 253 (D. Kan. 1988); Wright by Wright v. Group Health Hosp., 691 P.2d 564, 569 (Wash. 1984). Cf. Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege applies beyond organization’s control group to lower-level employees).
11. See Fair Auto. v. Car-X Service Sys., 471 N.E.2d 554, 560 (Ill. App. Ct. 1984).
12. Compare, e.g., Morrison v. Brandeis Univ., 125 F.R.D. 14, 18 (D. Mass. 1989) (in challenge to denial of professor tenure, court permitted ex parte contact with professors sitting on plaintiff’s peer review panel), with Baisley v. Missisquoi Cemetery Ass’n, 708 A.2d 924, 933 (Vt. 1998) (in case of personal injury occurring in cemetery, prohibiting ex parte contact with caretaker).
13. Niesig v. Team 1, 558 N.E.2d 1030, 1035 (N.Y. 1990).
14. Frey v. Dept. of Health & Human Servs., 106 F.R.D. 32, 37 (E.D.N.Y. 1985) (citations omitted) (allowing interviews of lower level SSA employees under “alter ego” test which only restricts contact with employees with authority to bind the agency); see Rivera v. Rowland, No. CV95-545629, 1996 WL 753943, at *5 (Conn. Super. Ct. Dec. 17, 1996) (allowing access to assistant public defenders as fact witnesses and noting that government defendants “are public persons and entities carrying on the public’s business. As such, they are compelled to strike a delicate balance and play a difficult dual role – vigorously defending the case, yet ensuring all the while that justice is done.”). See also, NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d 1335, 1342 (M.D. Fla. 2000) (allowing contact with prison workers in wrongful discharge litigation, despite contention that their actions and statements could be imputed to the defendant for liability purposes); Brown v. Or. Dept. of Corr., 173 F.R.D. 265 (D. Or. 1997) (allowing interviews of current non-management employees, employees whose conduct is not at issue, and all former or transferred employees); Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977) (contact with welfare workers allowed in Medicaid EPSDT litigation).
15. Model Rules of Prof’l Conduct R. 4.2 cmt. 5 (2004); see id. cmt. 4 (“”[T]he existence of a controversy between a government agency and a private party . . . does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”).
16. Model Rules of Prof’l Conduct R. 4.2 cmt. 7 (2004); see Frank v. L.L. Bean, Inc., 377 F. Supp. 2d 233, 236 (D. Me. 2005).
17. See, e.g., NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d at 1335; Olson v. Snap Prod., Inc., 183 F.R.D. 539 (D. Minn. 1998); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D. Conn. 1991); Clark v. Beverly Health & Rehab. Servs., Inc., No. 990163B, 2001 WL 914195 (Mass. Jul. 5, 2001); Lang v. Superior Court, 826 P.2d 1228 (Ariz. Ct. App. 1992); Strawser v. Exxon Co., 843 P.2d 613, 618 (Wyo. 1992). Some courts have declined to impose any limitations upon ex parte contacts with former employees. E.g., P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729, 737 (Ind. Ct. App. 2002); H.B.A. Mgmt. v. Estate of Schwartz, 693 So.2d 541, 545 (Fla. 1997).
18. See, e.g., H.B.A. Mgmt., 693 So. 2d at 546; Fed. R. Evid. 801(d)(2)(D).
19. Lang, 826 P.2d at 1233 (“for example, if an employee hired to drive a truck is involved in an accident that occurs in the course and scope of employment, the fact that the employee leaves her employment should not determine the propriety of ex parte communications. Clearly, the employee’s acts or omissions in connection with any litigation that arises out of the accident can be imputed to the former employer for purposes of civil liability”).
20. Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering§ 38.6, at 38-10 (2004 Supp.); see IBM v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) (emphasizing the importance of informal fact-gathering, versus restrictions inherent in having to take witness depositions).
21. Fed. R. Civ. P. 26(b)(1) (emphasis added).
22. 2000 Amendments to Fed. R. Civ. P. 26(b)(1), advisory committee notes.
23. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.
24. Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 430 (M.D. Fla. 2005) (While not without limits, “[t]he term ‘relevant’ in this definition is to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that bears on, any issue that is or may be in the case.’") (quoting Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1978)).
25. See, e.g., Collens v. City of New York, 222 F.R.D. 249, 252 (S.D.N.Y. 2004); Cornell Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 73 (N.D.N.Y. 2003); Sanyo Laser Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 500 (S.D. Ind. 2003) (“the scope of discovery has narrowed somewhat under the revised rule. The change, while meaningful, is not dramatic, and broad discovery remains the norm. The revised rule simply provides one additional justification for the Court to put the brakes on discovery that strays from the claims or defenses being asserted.”) Accord, Fountain v. City of New York, No. 03CIV4526 (RWS), 2004 U.S. Dist. LEXIS 7539, at *7, 2004 WL 941242, at *2 (S.D.N.Y. May 3, 2004).
26. See, e.g., Bowen v. Parking Auth., 214 F.R.D. 188, 195 (D.N.J. 2003) (while disallowing defendants request for mental examination of plaintiff in an employment termination and retaliation action because he had not placed his mental status “in controversy,” defendants would be allowed to request production of plaintiff’s psychological records and depose his therapists, since he claimed that emotional distress had emanated from his employment). See also, Sallis v. Univ. of Minn., 408 F.3d 470, 477 (8th Cir. 2005) (“the new rules limit the breadth of discovery that can occur absent court approval”) (quoting Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 967-68) (9th Cir. 2004)).
27. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes. See Diaz-Padilla v. Bristol Myers Squibb Holding Ltd. Liab. Co., No. 04-1003 (PG/GAG), 2005 WL 783076, at *1 (D. P.R. Apr. 4, 2005) (noting this purpose of disallowing discovery to develop new claims or defenses as the most significant behind the 2000 amendments). See also, Collens, 222 F.R.D. at 253 (“While Rule 26(b)(1) still provides for broad discovery, courts should not grant discovery requests based on pure speculation that amount to nothing more than a "fishing expedition" into actions or past wrongdoing not related to the alleged claims or defenses” (citations omitted)).
28. Thompson v. Dept. of Hous. & Urban Dev., 199 F.R.D. 168, 172 (D. Md. 2001) Id. at 172.
29. See, e.g., Starbucks Corp. v. Lundberg, No. CV02-948-HA, 2004 U.S. Dist. LEXIS 16141, at *14, 2004 WL 1784753, at *5 (D. Or. Aug. 10, 2004) (applying Rule 26(b)(2) factors to deny plaintiffs’ request for production of “all documents” relevant to defendant’s responses to plaintiffs’ interrogatories and requests for admission).
31. Surles v. Air France, No. 00CIV5004 (RMBFM), 2001 U.S. Dist. LEXIS 15315, at *6, 2001 1142231, at *2 (S.D.N.Y. Sept. 27, 2001).
32. Fed. R. Civ. P. 26(b)(1) (emphasis added). See Seales v. Macomb County, 226 F.R.D. 572, 575 (E.D. Mich. 2005) (“Under Fed. R. Civ. P. 26(b), the scope of discovery is quite broad. . . ‘The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence.’”) (quoting Lewis v. ACB Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998)); Cory v. Aztec Steel Bldg., Inc., 225 F.R.D. 667, 670 (D. Kan. 2005) ("Relevancy is broadly construed, and a request for discovery should be considered relevant if there is 'any possibility' that the information sought may be relevant to the claim or defense of any party.") (quoting Sonnino v. Univ. of Kan. Hosp. Auth., No. CIV.A.0222576-KHV-DJ, 2004 WL 769325, at *2 (D. Kan. Apr. 8, 2004)).
33. But see, Thompson, 199 F.R.D. at 172 (while noting the narrowing of the scope of the rule, the court cautioned that “counsel should be forewarned against taking an overly rigid view of the narrowed scope of discovery. While the pleadings will be important, it would be a mistake to argue that no fact may be discovered unless it directly correlates with a factual allegation in the complaint or answer. Such a restrictive approach would run counter to the underlying purpose of the rule changes, as explained by the commentary, run afoul of Fed. R. Civ. P. 1, and undoubtedly do disservice to the requirement of notice pleading in Rule 8, as parties would be encouraged to plead evidentiary facts, unnecessary to a ‘short and plain statement of the claim showing that the pleader is entitled to relief’, Rule 8(a)(2), simply to increase the likelihood of getting broader discovery.”).
35. 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.
36. Fed. R. Civ. P. 26(a)(1). A party may object at the Rule 26(f) conference that initial disclosures are not appropriate. This will require a case-specific order from the court on the objection. Id. In addition, if the parties “stipulate to bypass disclosure, the court can order exchange of similar information in managing the action under Rule 16.” 2000 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.
37. 1993 Amendments to Fed. R. Civ. P. 26(a), advisory committee notes.
38. Fed. R. Civ. P. 37(c)(1). See, e.g., Hopkins v. J.C. Penney Co., 227 F.R.D. 347 (D. Kan. 2004) (order dismissal without prejudice, subject to conditions upon refilling, as sanction for protracted delay in making Rule 26(a)(1) disclosures, coupled with failure to meet other discovery obligations).
39. Sender v. Mann, 225 F.R.D. 645, 650 (D. Colo. 2004).
40. E.g., Invision Media Commc’ns, Inc. v. Fed. Ins. Co., No. 02CIV.5461 (NRB)(KNF), 2004 WL 396037, at *12 (S.D.N.Y. Mar. 2, 2004) (given nature of claim, court found deficient the defendant’s identification of one “category” of documents as “Plaintiff’s underwriting files”); United States v. Merck-Medco Managed Care, 223 F.R.D. 330, 334 (E.D. Pa. 2004) (court found plaintiffs’ amended initial disclosure statement to be sufficient, where it listed approximately 3900 individuals, “believed ‘likely to have discoverable information,’ and provided basic contact information and general descriptions”).
41. Fed. R. Civ. P. 26(a)(1), (4).
42. Id. 26(e)(1).
43. Id. 26(a)(1). See, Sender, 225 F.R.D. at 650-51 (disclosures found deficient where party provided a “laundry list of undifferentiated witnesses” who had not all been previously interviewed by counsel).
44. Fed. R. Civ. P. 26(a)(1), (4).
45. See Merck-Medco Managed Care, 223 F.R.D. at 334-35 (noting that parties were still engaged in discovery and that defendants could obtain the needed information by “contacting the individuals; reviewing the list of persons noticed for deposition by Plaintiffs; taking depositions; and reviewing documents provided on an ongoing basis during discovery”).
47. Id. 26(f)(2).
48. Rule 26(f) allows local practice variations regarding timing of the conference and the issuance of a report. Consult your court’s local rules for implementation of the mandatory initial disclosure requirements and procedures.
49. Fed. R. Civ. P. 33(a), 34(b).
51. See Fed. R. Civ. P. 37(a)(2)(A) (requiring parties’ certification of good faith conference prior to filing motion to compel discovery disclosure). One court disclosed its viewpoint on discovery disputes, in a manner perhaps emblematic of other courts’ positions. In Banks v. Office of the Senate Sergeant-at-Arms, 222 F.R.D. 7, 11 (D.D.C. 2004), the court stated: “To solve this [discovery] problem, I am going to demand that the parties do something that, in my judgment, they have yet to do: cooperate . . . While the parties claim in their motions that they have fulfilled this responsibility, all they seem to do is to exchange nasty letters and equally nasty phone calls. I now will provide them with the opportunity to forge a compromise. I expect them to meet and attempt to agree on what documents will be exchanged and what interrogatories will be answered, now that they have the benefit of my thinking. I certainly hope that they can resolve their differences and relieve themselves and the court of further time and expense. . . .”
52. A “question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication..” 1993 Amendments to Fed. R. Civ. P. 33(a), advisory committee notes. Courts have, perhaps predictably, struggled to resolve various disputes regarding how interrogatories are to be counted in order to determine compliance with the Rule. E.g., Krawczyk v. City of Dallas, No. CIV.A.3:03-CV-0584D, 2004 WL 614842, at *3 (N.D. Tex. Feb. 27, 2004) (request for opinion or application of law to facts, coupled with requests for identification of relevant witnesses and their relevant statements held to constitute single interrogatory). “A subpart is discrete and regarded as a separate interrogatory when it is logically or factually independent of the question posed by the basic interrogatory . . . Or, stated differently, a subpart is independent and thus discrete when it is unnecessary to the understanding of a second subpart.” Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., No. Civ.3:01CV2198(PCD), 2003 WL 22326563, at *1 (D. Conn. Mar. 7, 2003). After reviewing various courts’ approaches, the Banks court offered this practical method: “Perhaps a more pragmatic approach, reminiscent of Justice Stewart's memorable "definition" of pornography, would be to look at the way lawyers draft interrogatories and see if their typical approaches threaten the purpose of the rule by putting together in a single question distinct areas of inquiry that should be kept separate.” Banks, 222 F.R.D. at 10 (footnote omitted) (demand for information about an event and a demand for documents pertaining to it should be counted as two separate interrogatories; demands relating to a single topic in a single field of inquiry can be contained in one interrogatory).
53. Fed. R. Civ. P. 33(a). Application of the Rule 26(b)(2) factors frequently involves determining “whether the requesting party has adequately shown that the benefits of additional interrogatories outweigh the burden to the opposing party.” American Chiropractic Assoc. v. Trigon Healthcare, Inc., No. 1:00CV00113, 2002 WL 534459, at *4 (W.D. Va. Mar. 18, 2002) (citation omitted). Advocates requesting permission to serve additional interrogatories must offer specific justification. Barker v. Am-Rail Construction, Inc., No. 02-2835-BV, 2004 WL 784507, at *3 (W.D. Tenn. Feb. 26, 2004) (where plaintiff had already served 32 interrogatories, new counsel’s statement that “new discovery is needed into the policies and/or practices of Defendant” found insufficient to authorize more interrogatories).
54. Fed. R. Civ. P. 26(g)(2). The responding party is “required to inquire and investigate in order to learn about others’ knowledge . . . [and[ must at least make a reasonable effort to obtain the information requested.” Interland, Inc. v. Bunting, No. 1:04-CV-444-ODE, 2005 WL 2414990, at *6 (N.D. Ga. Mar. 31, 2005). “In responding to an interrogatory, a party must include all information within his knowledge or control.” Hanley v. Como Inn, Inc., No. 99C1486, 2003 WL 1989607, at *4 (N.D. Ill. Apr. 28, 2003) (citation omitted).
55. See Meyer v. S. Pac. Lines, 199 F.R.D. 610, 615 n.12 (N.D. Ill. 2001) (interrogatory not objectionable because requested information is available to both parties as a matter of public record).
56. Fed. R. Civ. P. 33(c). Opposing parties may object to “contention interrogatories.” These are “interrogatories that seek to clarify the basis for or scope of an adversary's legal claims. The general view is that contention interrogatories are a perfectly permissible form of discovery, to which a response ordinarily would be required." Krawczyks, 2004 WL 614842, at *5 (quoting Starcher v. Correctional Medical Systems, Inc., 144 F.3d 418, 421 n. 2 (6th Cir. 1998)). As for opinions and conclusions, the rule also provides that “the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.” Fed. R. Civ. P. 33(c).
58. An interrogatory that calls for a legal conclusion extending to legal issues unrelated to the facts of the case is objectionable. Holland v. GMAC Mortgage, No. Civ. A.03-2666-CM-DJW, 2005 WL 1285678, at *3 (D. Kan. May 27, 2005).
60. Id. 33(b)(4). Interland, Inc., 2005 WL 2414990, at *5 (“global” objections prefacing the interrogatory responses were to be discounted as not meeting the Rule’s specificity standard).
61. Fed. R. Civ. P. 33(d). See In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 366-67 (N.D. Ill. 2005) (producing party could not invoke Rule 33(d) option where it had produced a million pages of documents and had only referred to them generally for their interrogatory answers, and where burden of reviewing documents was less for producing party, who, together with counsel, was more familiar with them).