Pretrial Devices for Obtaining Information: Depositions and Discovery

Question 1

What is the broad understanding on pretrial devices: depositions and discovery?

Answer 1

Amendments to the Federal Rules subjected the discovery process to greater judicial control; now mandating the disclosure of certain types of information without a party’s request or court order; and make discoverable only information relevant to the claims and defenses in the lawsuit-not the subject matter-when disclosure is proportional to the needs of the case

The rules also have been amended to account for electronic forms of information

Question 2

What duty does the Federal Rules impose on the parties and their counsel?

Answer 2

To investigate the facts before filing a lawsuit or presenting factual contentions to the court

Question 3

What is the rule of Depositions to Perpetuate Testimony?

FRCP 27

Answer 3

A person who wants to perpetuate testimony can file a verified petition in the district where any expected adverse party resides; the verified petition must set forth specific information

This rule does not substitute discovery and cannot be treated as a first step in a litigant’s pre-suit investigation; this is SOLELY used to preserve testimony that is at imminent danger of being lost

Question 4

What is the three-part test for invoking Rule 27 discovery?

Answer 4

1. Must furnish a focused explanation of what they anticipate any testimony would demonstrate, such testimony cannot be used to discover evidence for the purpose of filing a complaint
2. they must establish in good faith that they expect to bring an action cognizable in federal court, but are presently unable to bring it or cause it to be brought
3. peititoners must make an objective showing that without a Rule 27 hearing, known testimony would otherwise be lose, concealed, or destroyed

The Southern District of NY uses this

Question 5

What does discovery help?

Answer 5

1. Preserve relevant information that might not be available at trial
2. To isolate those issues that actually are in controversy between the parties
3. Promotes transparency by uncovering infor about goverment and business practices that may be illegal, and potentially makes that information available to a broader set of individuals than just the parties to the suit

Question 6

What do the parties need to do before discovery can begin?

FRCP 26(f)

Answer 6

They need to have conferred and devise a discovery plan before discovery can begin

Drafting a plan requires cooperation, strategic thinking, and attention to the multi-faceted aspects of the discovery process

Question 7

What is the Rule for Discovery Scope and Limits?

FRCP 26(b)(1)

Answer 7

Unless otherwise limited by court order, the scope of discovery is as follows:
1. Parties may obtain discovery regarding any nonprivileged matter;
2. That is relevant of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources
3. The importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit

Ultimately, it needs to be not privileged, relevant, AND proportional before getting into annything deeper

Question 8

What are some conclusions about relevant and discoverable information?

Answer 8

Relevant info is discoverable even if it would not be admissable in evidence at trial

Everything that is admissable is discoverable; just because something is discoverable does not mean it will be admissable

Question 9

What do the courts look to for guidance on “relevance”?

Answer 9

Courts look to the Federal Rule of Evidence 401

Evidence is relevant if:
1. it has any tendency to make a fact more or less probable than it would be without the evidence; and
2. the fact is of consequence in determining the action

Question 10

What are some conclusions about proportional discovery?

Answer 10

Even if information is relevant, it is discoverable only if disclosure is proportional to the needs of the case in light of factors set forth in Rule 26(b)(1)

The case discovery will cost more than litigation itself, it is not proportional

Question 11

What is Conference Timing, the duty to Confer and Plan Discovery?

FRCP 26(f)

Answer 11

The parties must confer as soon as practicabl, after the commencement of the suit, and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b), to devise a discovery plan

Question 12

What does the discovery plan include?

Answer 12

Includes “the views and proposals” of the parties concerning the range of proposed discovery requests

The plan must be in writing and submitted to the cuort within 14 days of the discovery conference

Question 13

What happens if the parties do not agree on a discovery plan?

Answer 13

The judge wants parties to work this out without the court but will ultimately come in when the parties are conflicted

Question 14

What do parties have a duty to disclose?

Rule 26(a)(1)(B)

Answer 14

Except as exempted by the Rule or otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to other parties:
1. name, address, number, and subject of information;
2. a copy of all documents and tangible things to support its claim or defenses;
3. a computation of each category of damages claimed; and
4. any insurance agreement that may satisy all or part of a possible judgment

A party is not obligated “to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use

Question 15

What is certification and the Duty to Supplement?

FRCP 26(g)

Answer 15

The parties have a duty to cooperate throughout the discovery process that is enforced through the signature requirement

Every automatic disclosure, every party-initiated request for discovery, every response to discovery, and every objection must be signed by at least one counsel of record or by the party if not represented by counsel

Question 16

What is the purpose of the signature requirement?

FRCP 26(g)

Answer 16

1. This certifies that to the best of the signer’s knowledge, information, and belief, the document presented is accurate and complete and being served for a proper purpose; and
2. This also shows that a reasonable inquiry has been made before submitting the document

Question 17

What does FRCP 26(g) essentially impose?

Answer 17

It imposes a self-executing duty to supplement automatic disclosures and discovery responses

If new information is learned or changes, you have a duty to disclose this

Question 18

What are the Mechanics of Requested Discovery?

Answer 18

Ways in which discovery may be sought

Question 19

What are depositions by oral examination?

FRCP 30

Answer 19

Either with (30(a)), or without leave, it explains when a depostion may be taken

Traditional Depositions

Question 20

What is the timing for depositions?

FRCP 30(d)

Answer 20

A deposition is limited to 1 day of 7 hours but the court may authorize additional time “if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impeded or delays the examination

Question 21

How many depositions can a party take?

Answer 21

Each party may only take 10 depositions unless they have a court order

Question 22

What are depositions by Written Request?

FRCP 31

Answer 22

Either with or without leave, it explains when depositions by written questions may be taken from parties and nonparties

Depositions are governed by both FRCP 30 and 31

Question 23

What does an oral deposition allow?

Answer 23

Allows a party to question “the deponent”, whether a party or not, under oath

If the deponent is a party, the notice is sufficient to require the parties appearance, and a subpoena is unneccesary

Question 24

What does FRCP 30(b)(6) allow?

FRCP 30(b)(6)

Answer 24

A party may seek, by notice or subpoena, the deposition of a corporation or association and require it to produce a person or persons who will testify on behalf of the organization

The party seeking information must with “reasonable particularity” detail the issues that are to be explored in order for the organiation to ascertain which witness or witnesses have the relevant knowledge

Question 25

What do parties have to do before or promptly after a notice of deposition or subpoena is served?

FRCP 30(b)(6)

Answer 25

The parties must confer “in good faith about the matters for examination”

If not a party, the notice of deposition will not be sufficient to compel the nonparty’s appearance

A person who fails to respond to a subpoena will be subject to a citation for contempt of court

Question 26

What are some exemptions in depositions?

FRCP 30(c)(2)

Answer 26

A deponent may be instructed not to answer only when necessary “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)” to terminate or limit the examination that is oppressive or conducted in bad faith

Question 27

What are some pros of depositions?

Answer 27

Depositions are the only discovery device that permits examination and cross-examination of a live witness by counsel, where there is no opportunity to reflect and carefully shape the information given

Question 28

What are Interrogatories to Parties?

FRCP 33

Answer 28

A party may serve on any other party, no more than 25 written interrogatories, including all discrete subparts

This allows one party to send another a series of questions to be answered under oath within a specific time; can be accomplished by mail

These can only be sent to other parties; does not have to request all 25 at once and can be saved for later

Question 29

What can a party do to stop from answering a question in the interrogatories?

Answer 29

A party may say if a question is improper instead of answering it, but the interrogating party can seek a motion to compel requiring an answer

Question 30

How long does a party have to answer interrogatories?

Answer 30

A party has 30 days to respond

Question 31

What is discovery and production of property

FRCP 34

Answer 31

A party may request a party to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control

This rule allows a party to request other parties to produce documents, electronically stored information, and tangible things in their possession or control; request must be describe items “with reasonable particularity; this rule is limited to parties only

Question 32

What is a subpoena?

FRCP 45

Answer 32

Discusses subpoena requirements and commands to attend depositions

This allows an attorney to give testimony, to produce and permit inspection, and copying of designated records or other tangible objects, or to permit inspection of premises

Question 33

What seven factors will a court look at to consider whether to require disclosure but shift the cost of discovery?

Zubulake v. UBS Warburg LLC, 217 F.R.D. 309

Answer 33

1. the extent to which the request is specifically tailored to discover; relavant information
2. the availability of such information from other sources;
3. the total cost of production, compared to the amount-in-controversy;
4. The total cost of production, compared to the resources available to each party;
5. The relative ability of each party to control costs and its incentive to do so;
6. the importance of the issues at stake in the litigation; and
7. the relative benefits to the partiesof obtaining information

Question 33

What are Physical and Mental Examinations?

FRCP 35

Answer 33

The court where the action is pending may order a party whose mental and physical condition-including blood group-is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner

This requires a court order for examination and imposes strict standards

Question 34

How can one compel a court to grant mental or physical examinations?

FRCP 35

Answer 34

The movant must show:
1. “Good cause” by weighing the pain, dange, or intrusiveness of the examination against the need for, or usefulness of, the information to be gained;
2. it requires an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy

Question 35

What are request for admissions?

FRCP 36

Answer 35

A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
1. Facts, the application of law, or opinions about either; and
2. the genuineness of any described documents

This rule is self-executing

These are use to shape information already known into statements that expedite the trial by limiting the issues in dispute and by obviating some of the formalities that control the introduction of evidence at trial

Question 36

What must a party who receives a request for admit do?

Answer 36

Must respond, while under oath, and in a timely fashion, admitting or denying each matter requested, or providing a detailed explanation why it cannot admit or deny the matter

The responding party may object to a request because improperly phrased (vague, ambiguous, or defectively drafted), or because it seeks privileged or protected information

Question 37

What are trial preparation materials?

FRCP 26(b)(3)

Answer 37

Documents and tangible things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trail by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)

Question 38

What is the “because of” standard?

Answer 38

When considering whether litigation was a primary or secondary motice behind the creation of a document.

It affords protection when it can be fairly said that the “document was created “because of” anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation

Question 39

What are the Privileges and Work Product?

FRCO 26(b)(1)

Answer 39

This rule limits discovery to “any non-privileged matter,” and the usual view has been that the same rules of privilege generally apply to discovery as apply to the trial

A privilege rule gives a person a right to refuse to disclose information that he otherwise would be required to provide

Question 40

What is attorney-client privilege?

Answer 40

For privilege to attach to a communication, four elements must be present:
1. The asserted holder of the privilege is or sought to be a client;
2. The person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is action as a lawyer;
3. The communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and
4. The privilege has been (a) claimed and (b) not waived by the client

When an attorney is retained to represent a corporation, the attorney-client and work product privileges may extend to every employee in that corporation (Upjohn Co. v. United States)

Question 41

What is the process for asserting privilege?

Rule 26(b)(5)

Answer 41

This rule requires that the claim be made expressly and that the nature of the withheld material be described in a way that enables the other parties to test the assertion of privilege

FIling a privilege log has become a standard way to assert the privilege

Question 42

What is a clawback provision?

Rule 26(b)(5)(B)

Answer 42

This rule allows for a clawback of privileged iinformation that is inadvertently disclosed

However, “once this information is out, its out”

Question 43

What are some other privileges?

Answer 43

1. Spousal privilege protects communications between parties to a marriage
2. The Fifth Amendment is privilege against self-incrimination

Question 44

What is disclosure of expert testimony?

FRCP 26(a)(2)

Answer 44

1. Parties must dusclose the identify of expert witnesses it may use at trial (mandatory)
2. The party must disclose (1) the subject matter on which the witness is expected to present testimony and (2) a summary of facts and opinions to which the witness is expected to testify

Question 45

What are pretrial disclosures?

FRCP 26(a)(3)

Answer 45

A party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment

Question 46

What are trial preparation: Experts?

FRCP 26(b)(4)

Answer 46

1. A party may depose any person who has been identified as an expert
2. Regulates the timing and scope of party-initiated expert discovery; these depositions of experts cannot take place until the mandatory report is received

Question 47

What are protective orders?

FRCP 26(c)

Answer 47

1. A party or person from whom discovery is sought may move for a protective order in the court
2. the motion must include a certification that the movant has in good faith conferred or attempted to confer with other parties to resolve the dispute without court action

Question 48

What is a Failure to Make Disclosures or to Cooperate in Discovery?

FRCP 37

Answer 48

1. Other parties may move for an order compelling discovery
2. This must include a certification from the movant that they have in good faith conferred or attempted to confer with the person or party failing to make disclosure

Question 49

What are the three options a party has when seeking a court order to compel discovery?

Answer 49

1. Order to compel discovery; motion granted, and can impose attorney’s fees; no cooperation=sanctions
2. Move immediately for sanctions if failure to comply; motion granted = immediate sanctions
3. Party not complying may seek protective order; to withhold information based on privilege or work product

Question 50

What is spoilation?

Answer 50

Refers to the “destruction or alteration of evidence or to the failure to preserve property for another”

Question 51

What is Using Depositions in Court Proceedings?

FRCP 32

Answer 51

1. At a hearing or trial, all or party of a deposition may be used against a party on these conditions: (A) The party was present or represented at the taking of the deposition or had reasonable notice of it; (B) It is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8)

Question 52

What is “use”?

FRCP 33(c)

Answer 52

An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence

Question 53

What is an Effect of an Admission, Withdrawing or Amending it?

FRCP 36(b)

Answer 53

a. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e). the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding

Question 54

What two sets of rules govern discovery responses?

Answer 54

1. The Rules of Procedure, governing whether the discovery material can be used at all at trial; and
2. The Rules of Evidence, governing whether the matters are admissable at trial