1. CIVIL PROCEDURE CLASS 15 Professor Fischer Columbus School of Law The Catholic University of America October 11, 2001

2. PRACTICE MIDTERM

3. 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)

4. WHAT WILL WE DO TODAY? 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

5. INITIAL DISCLOSURES & THEIR TIMING 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?

6. Rule 26(f) DISCOVERY MEETING 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)

7. TIMING/SCHEDULE FOR DISCOVERY 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

8. OTHER DISCOVERY AND RULE 26(f) When, relative to the discovery meeting, can parties use other discovery techniques such as interrogatories, depositions, document requests? See FRCP 26(d)

9. 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?

10. WHAT MUST BE DISCLOSED AS TRIAL APPROACHES? 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?

11. 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)

12. 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 of 26(a)(3) must be filed with court – 26(a)(4)

13. FAILURE TO MAKE AUTOMATIC DISCLOSURES What happens if a party fails to make the required automatic disclosures under 26(a)(1)?

14. FAILURE TO MAKE AUTOMATIC DISCLOSURES 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

15. 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)

16. DEPOSITIONS : FRCP 27-32 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)

17. 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))?

18. 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)?

19. DEPOSITIONS OF PARTIES 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)

20. DEPOSITIONS OF NON- PARTIES 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

21. 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

22. 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)

23. REVIEWING THE DEPOSITION TRANSCRIPT Can a deponent review the transcript of her deposition and if so, in what circumstances? See FRCP 30(e)

24. 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)

25. USE OF DEPOSITIONS AT TRIAL 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

26. 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?

27. INTERROGATORIES AND NON-PARTIES Can an interrogatory be served on a non- party? Can an interrogatory be served on a corporation?

28. 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?

29. SIGNATURE REQUIREMENTS Who must sign interrogatory answers? Who must sign interrogatory objections?

30. ADVANTAGES/DISADVANT AGES OF INTERROGATORIES What are the advantages of interrogatories? What are the disadvantage of interrogatories?

31. HYPO 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 not privileged. Must Store answer? Must Manufacturer answer? By what, if any, procedural step might Betty induce them to answer?

32. EXAMINING DOCUMENTS, THINGS, PROPERTY & PEOPLE: FRCP 34/35 Requests for production/inspection of documents and things: FRCP 34 Physical and mental examinations: FRCP 35

33. 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)

34. 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?

35. PRODUCTION OF DOCUMENTS 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?

36. HYPO 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?

37. 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?

38. HYPO 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?

39. MOREON PAT/DUNHAM HYPO 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?

40. MORE ON PAT & DUNHAM 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?

41. PAT/DUNHAM 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?

42. 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?

43. PROCEDURE FOR REQUESTING ADMISSIONS How does a party request an admission? From whom may parties request admissions? Can non-parties request admissions?

44. 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?

45. RESPONDING TO REQUESTS FOR ADMISSION How does a party respond to a request for an admission?

46. EFFECT OF ADMISSIONS UNDER FRCP 36 What is the effect of an admission made under FRCP 36? See FRCP 36(b)

47. HYPO 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”?

48. MORE ON THE BOY SCOUTS Assume that defendant makes the admission and one of the other trippers brings a lawsuit against defendant. Is the admission binding on defendant?

49. PRACTICE EXERCISE 14 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