CIVIL PROCEDURE FALL 2003SECTION F

CLASS 21

DISCOVERY III

HYPO

Polly was injured when she was struck by a bus owned by the Blue Bus Company. Polly then sued Blue Bus Co. in federal court.

ANOTHER QUESTION

Same facts as previous hypo, but through the expenditure of more than $10,000, Blue Bus Co.’s attorney has uncovered another eyewitness to the accident. Polly serves an interrogatory asking for the names of all eyewitnesses and Blue Bus objects on the ground of “trial preparation materials”. Must Blue Bus Co. disclose the witness’s name?

TIMING/SCHEDULE FOR DISCOVERY

1 Court schedules scheduling conference2 At least 21 days before, parties must have discovery meeting under 26(f) (could be by phone) and must submit written report of discovery plan within 14 days of discovery meeting3 Parties must make voluntary disclosure within 14 days after discovery meeting4 Parties meet with judge for scheduling conference establishing timetable for discovery

Discovery Conference

Rules anticipate that discovery plan will be included in the scheduling order court must issue within 120 days after service of the complaint.

What goal is this 26(f) mandatory discovery conference designed to achieve? Do you think it does a good job in achieving this goal?

HOW MUCH INFO. MUST BE DISCLOSED

Sam has not finished investigating his case by the time limit for automatic disclosures under 26(a)(1). Does he still have to comply with the automatic disclosures? Why or why not?

WHAT MUST BE DISCLOSED AS TRIAL APPROACHES?

WHAT MUST BE DISCLOSED AS TRIAL APPROACHES?

ID of experts (FRCP 26(a)(2)(A)) and Experts reports (FRCP 26(a)(2)(B))ID of trial witnesses that party will use or may use (except solely for impeachment) and designations of deposition testimony (FRCP 26(a)(3)(A) & (B)) and documents/exhibits that will/may be evidence at trial (exhibits) (FRCP 26(a)(3)(C))When must these expert disclosures be made?When must these pretrial disclosures be made?

TIMING OF THESE DISCLOSURES UNDER 26(2) and 26(3)

Timing for disclosures re: experts - 90 days before trial in absence of stipulation/court order – or if solely to rebut other party’s evidence, 30 days after other party’s disclosure. Timing for pretrial disclosures - 30 days before trial in absence of court order. Objections w/in 14 days thereafter. Objections not made other than relevance/prejudice are waived.

FORM OF DISCLOSURES

Unless court orders otherwise, under FRCP 26(g) & 26(a)(4), initial disclosures -under FRCP 26(a)(1) - (3) MUST BE: In writingSigned by attorney/unrepresented party NB SANCTIONS RISK HERE – see 26(g)(3)Served on other parties – 26(a)(4)Only the pretrial disclosures must be filed with court – 26(a)(3)

FAILURE TO MAKE AUTOMATIC DISCLOSURES

What happens if a party fails to make the required automatic disclosures under 26(a)?

SUMMARY OF 2000 CHANGES TO INITIAL DISCLOSURES –

Scope of disclosures narrowed Local rules can no longer reject automatic disclosures in 26(a)(1) except in certain specified categories of action in new FRCP 26(a)(1)(E)Slight differences in timing for 26(f) discovery conference and automatic disclosures (14 rather than 10 days after 26(f) conference) unless stipulation or court order provides otherwise, or valid objection under the rulesFiling of automatic disclosures is no longer required (nb. Local rules frequently provided that filing was unnecessary)

DISCOVERY TECHNIQUES

Timing of discovery: Rule 26(d) provides that parties generally can’t seek discovery from any source before parties have had their Rule 26(f) discovery meeting

INTERROGATORIES

What is an interrogatory? (See CB p. 1079)

Which FRCP governs interrogatories?

How many interrogatories may be served on another party? Do Plaintiff’s interrogatories set out at CB 1079 meet this requirement?

INTERROGATORIES AND NON-PARTIES

Can an interrogatory be served on a non-party?

Can an interrogatory be served on a corporation?

RESPONDING TO INTERROGATORIES

How should a party respond to an interrogatory? See 33(b)(1) and 33(d); CB 1039

Can a party object to an interrogatory? If so, how? Can a party object on basis that interrogatory asks for legal conclusion?

What are the time limits for responding to interrogatories?

SIGNATURE REQUIREMENTS

Who must sign interrogatory answers?

Who must sign interrogatory objections?

ADVANTAGES/DISADVANTAGES OF INTERROGATORIES

What are the advantages of interrogatories?

What are the disadvantage of interrogatories?

DEPOSITIONS : FRCP 27-32

What is a deposition? (See CB 1083 for Dee’s)What are the advantages of depositions? Main drawback of depositions is costPossible to take deposition before action is commenced if danger that important testimony may be lost (FRCP 27)

Officer at Deposition

What is the role of the “officer” at a deposition? See FRCP 28, 30(a)(4)

Can a party object to an officer? On what basis? See 32(d)(2), 28(c)

TAKING DEPOSITIONS: FRCP 30

Can parties be deposed?

Can non-parties be deposed? (30(a)(1))

Can a corporation be deposed? (See 30(b)(6))

When is leave of the court required to take a deposition (See 30(a)(2))?

DEPOSITIONS OF PARTIES

How do you initiate the deposition of a party?What if you want the party to bring documents? See 30(b)(5)What must be in the notice of deposition?Must a notice normally be filed with court?What happens if a party does not comply with a notice of deposition?Can a party object to a valid notice? See FRCP 26(c)

DEPOSITIONS OF NON-PARTIES

How do you initiate the deposition of a non-party? See FRCP 30(a)(1), 45

What happens if a non-party does not show up for the deposition?

How can a non-party object? FRCP 26(c)

What should counsel do if she wants a non-party to produce documents or other tangible evidence for a deposition? See 45

SCHEDULING DEPOSITIONS

How do counsel schedule the time and place of depositions?

Are there any limits on the place of depositions for parties or non-parties?

Is there a time limit for depositions (see 30(d)(2)?

CONDUCT OF THE DEPOSITION

What statements must be made at the beginning/end of a deposition? (See 30(b)(4))

How does the questioning work at a deposition? See 30(c); CB 1084

OBJECTING TO QUESTIONS/REFUSING TO ANSWER AT DEPOSITIONS

Can a deponent object to questions and if so, on what basis (See FRCP 30(c)), 32(d)(3))Must a deponent answer a question at a deposition even if she has an objection to it? See FRCP 30(d)(1)What if the deponent’s objection is based privilege? What if the deposing counsel is harassing the witness? See 30(d)(4)

REVIEWING THE DEPOSITION TRANSCRIPT

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

UNUSUAL TYPES OF DEPOSITIONS

Telephone/videoconference depositions - see 30 (b)(7)

Depositions on written questions - see 31 – just know what one is, not specific rules for its noticing and conduct

Video depositions - see 30(b)(2)