The F.R.C.P. Part II Alan R. Beckman, J.D.

Part II: F.R.C.P. rules 26 through 53 Introduction These rules primarily address procedures relating to: Discovery and sanctions for noncompliance All trial related matters from jury selection through the verdict

F.R.C.P. rules 26 through 53 Rule 26: General provisions regarding discovery…*** This introductory rule discusses: Initial, expert and pretrial disclosures Limitations on discovery, including ESI “Work product” & privilege issues Protective orders, sequence & planning Signing discovery Notes: Paralegals must know all about discovery for several reasons

F.R.C.P. rules 26 through 53 Rule 27: Depositions to perpetuate testimony* This discovery technique involves court approval to take depositions before a suit or an appeal is filed to preserve testimony Examples involve exigent circumstances Notes: Due process requires notice of taking to all potential parties

F.R.C.P. rules 26 through 53 Rule 28: Persons before whom depositions…* Describes persons who take and record depositions Notes: insures proper oaths are administered and accurate records and transcripts are produced

F.R.C.P. rules 26 through 53 Rule 29: Stipulations regarding discovery** Allows parties to modify discovery procedures by stipulations so long as the court time frames are unaffected Notes: paralegals should proactively seek stipulations re: discovery

F.R.C.P. rules 26 through 53 Rule 30: Depositions by oral examination*** Provides for notice and taking of depositions up to 10 (more require stip. or order) Addresses time restraints, costs, objections, manner of recording, written questions, witness changes and sanctions Notes: paralegals should know how to “set up” depositions and digest a depo.

F.R.C.P. rules 26 through 53 Rule 31: Depositions upon written questions* Sets forth the procedure for taking this type of deposition, when court approval is needed and the role of the officer/reporter Notes: this is used infrequently, in limited circumstances

F.R.C.P. rules 26 through 53 Rule 32: Using depositions…** Indicates when and under what circumstances a deposition can be used in court hearings and trials Reasons used include refresh, impeach and unavailability Notes: this rule must be considered whenever preparing for hearing or trial and use of a depo. is needed.

F.R.C.P. rules 26 through 53 Rule 33: Interrogatories…*** This major form of discovery allows written questions of opposing parties and provides form, limits (25), answering and use of records for answers Notes: techniques include broad scope; bio., facts and assets questions; and use of sets

F.R.C.P. rules 26 through 53 Rule 34: Producing documents…*** Provides for discovery of physical information: What is discoverable, including ESI Contents of requests To parties and by subpoena to non-parties Procedure for response, 30 days Notes: techniques include broad scope; “catch-all” request; reasonableness

F.R.C.P. rules 26 through 53 Rule 35: Physical and mental examinations** When a party raises issues re: physical or mental conditions, this rule allows by order or stip. an I.M.E. with report sharing obligations Notes: used frequently in personal injury cases, not self-executing

F.R.C.P. rules 26 through 53 Rule 36: Requests for admissions*** Parties may seek admissions to different relevant facts using and admit or deny format Answered in 30 days Admits are conclusive Directed to parties Notes: used to seek relevant commitments, focused and direct, phrasing techniques

F.R.C.P. rules 26 through 53 Rule 37: Failure to make disclosures…*** Provides for enforcement and sanctions for noncompliance with discovery Two step process (compel and sanctions) Broad remedies including costs, suppression, default, dismissal, etc. Notes: used to seek remedies when a party fails or refuses to provide discovery

F.R.C.P. rules 26 through 53 Rule 38: Right to jury trial…* Rule recognizes the right to trial by jury in civil actions generally upon the condition: A timely written demand is made Waivers require parties’ consent No demand results in waiver Notes: paralegals often draft demands, two methods for demands

F.R.C.P. rules 26 through 53 Rule 39: Trial by jury or by the Court* Rarely used rule essentially indicating trial is to the court unless: Demand is made AND the issues are triable to jury (Not equitable actions) Note that demands for certain actions can be stricken Notes: attorneys make decisions here, so, no worries for you in this rule!

F.R.C.P. rules 26 through 53 Rule 40: Scheduling…* Short rule setting priority in scheduling trials based upon statutes Notes: attorneys make decisions here, so, no worries again for you in this rule!

F.R.C.P. rules 26 through 53 Rule 41: Dismissal of actions** Provides procedures for: Voluntary and involuntary dismissals Examples Dismissals without prejudice unless based upon want of prosecution Notes: paralegals need to track case progress to insure prosecution occurs

F.R.C.P. rules 26 through 53 Rule 42: Consolidation; Separate trials ** Provides procedures for trials to be combined or severed based on: Commonality – consolidated Prejudice, efficiency - severed Notes: paralegals may draft motions under this rule

F.R.C.P. rules 26 through 53 Rule 43: Taking testimony* Short rule simply describing ways testimony is allowed and requiring the court to only consider fact based testimony in some sworn format Notes: paralegals use this to prepare for hearings and trials, especially in deciding whether affidavits are needed for motions

F.R.C.P. rules 26 through 53 Rule 44.1: Determining foreign law* Sets forth the requirements for proving foreign law through any relevant and material source, e.g., proving a French statute with a copy of the statute from a government publication Notes: paralegals use this to prepare for hearings and trials and seek stipulations re: records (also judicial notice may occur)

F.R.C.P. rules 26 through 53 Rule 45: Subpoena** Sets forth the requirements for subpoenas: Contents How served Protection, quashing & modifying Responding Notes: consult for subpoena related issues for ad testificandum and duces tecum

F.R.C.P. rules 26 through 53 Rule 46: Objecting…* Discusses objections by eliminating formal exceptions and not requiring objections when there was no opportunity to make one Notes: only real significance pertains to appellate issues in the record

F.R.C.P. rules 26 through 53 Rule 47: Selection of jurors* Discusses questioning (voir dire) by court and by counsel, peremptory and cause challenges Notes: only real significance pertains to appellate points of error

F.R.C.P. rules 26 through 53 Rule 48: Numbers of jurors…* Discusses the number of jurors as from 6 to 12, according to law, returning a verdict by at least 6 and polling jurors Notes: only real significance pertains to appellate points of error

F.R.C.P. rules 26 through 53 Rule 49: Special verdicts etc….** Discusses questions to the jury in special and in general verdicts and the effect of inconsistent answers on the verdict Notes: paralegals often prepare these questions/interrogatories relating to elements and issues re: claims

F.R.C.P. rules 26 through 53 Rule 50: Judgment as a matter of law…** Combines motions for directed verdicts and for judgment n.o.v. and when granted, permits motions for a new trial to be considered. Tests the sufficiency of the evidence a/k/a a “prima facie” case Notes: appellate points of error, primarily

F.R.C.P. rules 26 through 53 Rule 51: Instructions to the jury…** Sets forth the procedure for: Submitting instructions before and after the evidence closes Making objections to preserve the record Notes: allows for appellate points of error, primarily

F.R.C.P. rules 26 through 53 Rule 52: Findings and conclusions by the Court…* Describes the process for rendering a verdict in a nonjury trial wherein the court must make specific findings of fact and conclusions of law on each issue raised Notes: allows for appellate points of error, primarily

F.R.C.P. rules 26 through 53 Rule 53: Masters Describes when and how a master can be appointed, what their authority is and how their reports/orders are issued (contents and review) Notes: assists courts in the timely handling of fact finding and damages determinations, among other matters

Class two Quizzers NAME THAT RULE quiz: correctly answer the following: “What rule applies to…” Depositions prior to filing suit_______ Sanctions re: discovery_______ Jury demand requirement_______ Dismissal of suits due to inactivity______ Quashing a subpoena_______ Selecting (voir dire) a jury_______ Signing discovery_______ Jury instructions_______ 1=27, 2=37, 3=38, 4=41, 5=45,6=47, 7=26 and 8=51