CIVIL PROCEDURE
FALL 2003
SECTION 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
conference
2 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 meeting
3 Parties must make voluntary
disclosure within 14 days after
discovery meeting
4 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 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 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 rules
Filing 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/DISADVANTAG
ES 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 cost
Possible 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 NONPARTIES
How do you initiate the deposition of a nonparty? 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)