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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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.

8. 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

9. 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.

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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!

17. 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!

18. 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

19. 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

20. 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

21. 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)

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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