CIVIL PROCEDURE CLASS 15
Professor Fischer
Columbus School of Law
The Catholic University of America
October 11, 2001
PRACTICE MIDTERM
WRAP-UP OF LAST CLASS
Last class, we finished up our discussion of
the scope of discovery under FRCP 26(b),
including relevance, limitations, and
privilege. We focused on attorney work
product privilege
 We started to discuss the initial disclosures
required under FRCP 26(a)
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WHAT WILL WE DO TODAY?
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Finish learning about the timing of initial
disclosures
Learn about the discovery techniques of
depositions (FRCP 27-31), interrogatories (FRCP
33), document requests (FRCP 34),
physical/mental examinations (FRCP 35), and
requests for admissions (FRCP 36)
Time permitting, discuss Practice Exercise No. 14
We will discuss discovery sanctions on next
Tuesday
INITIAL DISCLOSURES &
THEIR TIMING
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Why are some lawyers opposed to initial
disclosures?
When must these initial disclosures under
26(a)(1)(A)-(D) be made?
Within 14 days after the discovery meeting
(conference) required by Rule 26(f) unless a
different time is set by court order or stipulation
When is the discovery meeting?
Rule 26(f) DISCOVERY
MEETING
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Must be “as soon as practicable” or at least 21
days before the initial scheduling conference held
or scheduling order is due – see Rule 16(b) – w/in
90 days after D’s appearance or 120 days after
service of complaint
Timing and discovery meeting/discovery plan
requirements can be modified by local rule or
court order
At, or within 14 days after the discovery meeting,
parties must make their initial disclosures –unless
stipulation or court order provides otherwise:
FRCP 26(a)
TIMING/SCHEDULE FOR
DISCOVERY
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1. Court schedules scheduling conference or
scheduling order is due within 90 days after D’s
appearance/120 days within complaint service
2. At least 21 days before (1) above, parties must
have discovery meeting under 26(f)
3. Parties must make voluntary disclosures w/in
14 days after discovery meeting
4. Parties meet with judge for scheduling
conference establishing timetable for discovery
OTHER DISCOVERY AND
RULE 26(f)
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When, relative to the discovery meeting,
can parties use other discovery techniques
such as interrogatories, depositions,
document requests? See FRCP 26(d)
HOW MUCH INFO. MUST BE
DISCLOSED
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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?
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ID of experts (FRCP 26(a)(2)(A)) and Experts
reports (FRCP 26(a)(2)(B))
When must these expert disclosures be made?
ID of trial witnesses and designations of
deposition testimony (FRCP 26(a)(3)(A) & (B))
and documents/exhibits that will be evidence at
trial (exhibits) (FRCP 26(a)(3)(C)
When must these pretrial disclosures be made?
TIMING OF THESE
DISCLOSURES UNDER
26(a)2) and 26(a)(3)
When must disclosures re: experts be made?
 Timing: 90 days before trial in absence of
stipulation/court order – 26(a)(2)(c)
 When must disclosure of trial evidence be
made?
 Timing: 30 days before trial in absence of
court order. Objections w/in 14 days
thereafter (26)(a)(3)
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FORM OF DISCLOSURES
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Unless court orders otherwise, under FRCP 26(g)
& 26(a)(4), initial disclosures -under FRCP
26(a)(1) - (3) MUST BE:
In writing
Signed by attorney/unrepresented party NB
SANCTIONS RISK HERE – see 26(g)(3)
Served on other parties – 26(a)(4)
Only the pretrial disclosures of 26(a)(3) must be
filed with court – 26(a)(4)
FAILURE TO MAKE
AUTOMATIC DISCLOSURES
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What happens if a party fails to make the
required automatic disclosures under
26(a)(1)?
FAILURE TO MAKE
AUTOMATIC DISCLOSURES
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What happens if a party fails to make the required
automatic disclosures under 26(a)(1)? Failure to
make disclosures results in exclusion of
undisclosed witness or information unless failure
was harmless or substantial justification.
Remember: possibility of objection in Rule 26(f)
discovery plan
Can’t excuse failure based on incomplete
investigation or problems with other party’s
disclosures
2000 CHANGES TO INITIAL
DISCLOSURES
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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 rules
Filing of automatic disclosures is no longer required
(nb. Local rules frequently provided that filing was
unnecessary)
DEPOSITIONS : FRCP 27-32
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What is a deposition? (See CB 1083 for Dee’s)
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)
What are the advantages of depositions?
Main drawback of depositions is cost
Possible to take deposition before action is
commenced if danger that important testimony
may be lost (FRCP 27)
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))?
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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)?
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DEPOSITIONS OF PARTIES
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How do you initiate the deposition of a party? See
Fig. 20-1 of Glannon at p. 371
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 NONPARTIES
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How do you initiate the deposition of a non-party?
See FRCP 30(a)(1), 45, Fig. 20-2 Glannon p. 372
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
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
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OBJECTING TO
QUESTIONS/REFUSING TO
ANSWER AT DEPOSITIONS
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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
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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)
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USE OF DEPOSITIONS AT
TRIAL
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FRCP 32
Any or all of a deposition may be used as trial as if
witness present and testifying (an exception
against rule against hearsay evidence)
But rules of evidence still apply to admission of
the depositions contents
A deposition is like a box containing evidence –
the box can be used at trial but the contents are
subject to admissibility rules
INTERROGATORIES
What is an interrogatory? See Fig. 20-3 in
Glannon p. 377
 Which FRCP governs interrogatories?
 How many interrogatories may be served on
another party?
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INTERROGATORIES AND
NON-PARTIES
Can an interrogatory be served on a nonparty?
 Can an interrogatory be served on a
corporation?
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RESPONDING TO
INTERROGATORIES
How should a party respond to an
interrogatory? See 33(b)(1) and 33(d), See
Fig. 20-4 in Glannon p. 380
 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?
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SIGNATURE REQUIREMENTS
Who must sign interrogatory answers?
 Who must sign interrogatory objections?
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ADVANTAGES/DISADVANTA
GES OF INTERROGATORIES
What are the advantages of interrogatories?
 What are the disadvantage of
interrogatories?
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HYPO
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Having sustained injuries from a household
appliance, Betty sues the manufacturer, SuperVac.
The required discovery conference and ensuing
disclosures occur. Betty then serves 55
interrogatories on SuperVac and 20 interrogatories
on Rechts Department Store, which sold her the
product. Both SuperVac and Store refuse to
answer. Assume the questions are relevant and no
privileged.
Must Store answer? Must Manufacturer answer?
By what, if any, procedural step might Betty
induce them to answer?
EXAMINING DOCUMENTS,
THINGS, PROPERTY & PEOPLE:
FRCP 34/35
Requests for production/inspection of
documents and things: FRCP 34
 Physical and mental examinations: FRCP
35
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DOCUMENT REQUESTS:
FRCP 34
How do you request production/inspection
of documents, things or property from a
party? FRCP 34(a) and (b)
 Note “possession, custody or control”
requirement for documents; “possession or
control” for land : FRCP 34(a)
 How do you request a non-party to produce
documents & things? FRCP 34(c)
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RESPONDING TO
DOCUMENT REQUESTS
How long does the recipient of the request
have to respond? (See 30(b))
 Can the recipient object? If so, In what
circumstances?
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PRODUCTION OF
DOCUMENTS
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If the recipient of a document request does
not object, can she produce the documents
in a jumbled mass? If not, how must they be
arranged? What is the governing FRCP?
HYPO
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Randolph files suit for damages against
Craven after being injured in an accident
with a truck owned and operated by
Craven. Randolph has reason to think that
Craven’s truck was serviced at Elaine’s
Garage and wants to see the service record.
Randolph doubts Elaine will produce it
voluntarily. What steps can Randolph take
to obtain the documents?
FRCP 35: PHYSICAL &
MENTAL EXAMINATIONS
When will a court order a party to be
physically or mentally examined? What is
the governing FRCP?
 What must be included in the motion for an
order for a physical/mental examination?
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HYPO
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Pat is injured in an automobile crash with
Dunham. Pat sues Dunham in negligence for
damages to compensate her for her injuries.
Dunham seeks to have Pat examined by a
physician.
1. Should the court grant permission?
2. If the exam takes place, is Pat entitled to see a
copy of the physician’s report to Dunham?
MOREON PAT/DUNHAM
HYPO
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Pat requests a copy of the physician’s report
and receives it. Dunham then requests from
Pat copies of her physician’s report on her
injuries. Is Dunham entitled to these?
MORE ON PAT & DUNHAM
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Rather than move for a physical exam,
Dunham’s lawyer in the Rule 26(f)
conference suggests that Pat submit
voluntarily to a physical exam. If Pat
agrees, can Dunham’s lawyer obtain a copy
of the report? Can Dunham’s lawyer take
the examining doctor’s deposition? What is
the governing FRCP?
PAT/DUNHAM
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A key witness in Pat’s suit vs. Dunham is
Jones, who allegedly saw “everything” that
happened from a position of more than 100
feet away. Can Dunham require Jones to
take an eye exam? What happens if Jones is
an employee of Dunham?
REQUESTS FOR ADMISSION
What is a request for admission?
 What FRCP governs requests for
admission?
 Requests for admission can be seen as much
as pleading rules as discovery devices.
Why?
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PROCEDURE FOR
REQUESTING ADMISSIONS
How does a party request an admission?
 From whom may parties request
admissions?
 Can non-parties request admissions?
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SCOPE OF REQUESTS FOR
ADMISSIONS
For what facts/matters may requests for
admissions be validly made?
 Can requests for admission include requests
for opinions of fact or applications of law to
fact? Pure legal conclusions?
 Are there numerical limits on requests for
admission?
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RESPONDING TO REQUESTS
FOR ADMISSION
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How does a party respond to a request for
an admission?
EFFECT OF ADMISSIONS
UNDER FRCP 36
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What is the effect of an admission made
under FRCP 36? See FRCP 36(b)
HYPO
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Greg is injured on a scout outing when he
trips on a wire after returning from a late
night “raid” on another campsite. He brings
suit vs. the Boy Scouts of America, Inc. A
young boy tells defense counsel he saw 4
other boys trip over the same wire. Plaintiff
serves a notice to admit that 4 boys tripped
over the same wire. Must defendant admit
that “fact”?
MORE ON THE BOY SCOUTS
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Assume that defendant makes the admission
and one of the other trippers brings a
lawsuit against defendant. Is the admission
binding on defendant?
PRACTICE EXERCISE 14
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Discovery planning in Carpenter
See CB 356-358
Initial disclosures
Depositions – party/nonparty
Interrogatories
Document Requests
Physical/Mental Exams
Requests for Admission
Sequence of discovery