1. CIVIL PROCEDURE 2002
Class 21
October 15, 2002

2. Today’s Class We will do a practice hypo on discovery techniques.
We will learn about two final discovery techniques: (1) physical/mental examinations and (2) requests to admit.
We will learn about special sanctions for discovery abuses. Remember that discovery is excluded from Rule 11.

3. DISCOVERY 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?

4. Wrap-up R. 34 Document requests only apply to parties
Non-parties can be subpoenaed for discovery purposes. Subpoenas ad testificandum pertain to testimony and duces tecum are for documents.
The proper method to challenge a subpoena is a MOTION TO QUASH (if it is unreasonable or oppressive).
Any motion to quash should be brought in the judicial district that issued the subpoena. Remember that this may be different from the district where the action is pending.
Also possible to object to subpoena duces tecum in writing within 14 days. If party serving subpoena still seeks documents, s/he files motion to compel, which court will rule on

5. Document Production
Responding party has several options under R. 34(b)
They can let serving party inspect/copy documents where they are normally kept (a file room, for example) or as they are normally kept in the ordinary course of business
They could also collect the documents and organize/label them to correspond to the document requests
The responding party can make copies for the serving party but is not required to do so.

6. FRCP 35: PHYSICAL & MENTAL EXAMINATIONS
When will a court order a party or non-party to be physically or mentally examined? What is the governing FRCP?
What must be included in the order for a physical/mental examination?
How would you describe the LIMITS that the FRCP place on physical and mental examinations?

7. 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?

8. MOREON PAT/DUNHAM HYPO
Pat requests a copy of the physician’s report and receives it. Dunham then requests from Pat copies of Pat’s own physician’s report on her injuries. Is Dunham entitled to these?

9. 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?

10. 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?

11. 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?

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

13. 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? Whether a document is genuine?
Are there numerical limits on requests for admission?

14. RESPONDING TO REQUESTS FOR ADMISSION
How and when should a party respond to a request for an admission?
Is it wise to just ignore a request for admission?
What happens if a party responds to a request for admission by a denial and the other party later proves the genuineness of the subject of the request for admission?

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

16. 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 Greg’s counsel that he saw 4 other boys trip over the same wire. Greg’s counsel serves defendant with a request to admit that 4 boys tripped over the same wire. Must defendant admit that “fact”? .

17. CHANGE TO PREVIOUS HYPO
Assume that defendant makes the admission and one of the other trippers brings a lawsuit against defendant. Is the admission binding on defendant?

18. Assessing The Pros and Cons of Requests for Admission
Requests for admission are not used often and are often subject to abuse due to the ability to deny important issues as well as relatively weak sanctions provisions (37(c)).
They are most effectively used to get a party to admit the authenticity of documentary evidence.
They are relatively inexpensive as discovery tools go.

19. DISCOVERY SANCTIONS
There are special provisions in the discovery rules for sanctions for failure to comply with the discovery rules.
See especially FRCP 26(g) and 37
Answer Question: What happens if I don’t comply with what the discovery Rules require me to do ?
As Glannon points out, sometimes nothing, depending on the other party

20. RULE 26(g) SIGNATURE REQUIREMENTS
What are the signature requirements under Rule 26(g)?
Do these apply only to the automatic disclosures under Rule 26?
What does the signature certify?
What happens if a discovery request or response is not signed?
What happens if a certification is made that violates Rule 26(g)?

21. POLICING DISCOVERY- MOTIONS TO COMPEL & SANCTIONS
Three- step process, if the party seeking discovery believes opponent failed to comply [by failing to make initial disclosure under 26(a), failing to answer an R. 33 interrogatory, failing to answer a R. 30, 31 deposition question, failing to designate under 30(b)(6), failing to respond to R. 34 document request AND that party wants to pursue it. NB: evasive/incomplete answers= failure to answer]
1. Informal Conference (37(a)(2)) – required before moving for order to compel or for sanctions
2. Motion to compel (37(a)(2))
3. Sanctions for failure to obey an order to compel (37(b))

22. MOTIONS TO COMPEL DISCOVERY
Rule 37(a)
When should a party file a motion to compel?
What special certification must accompany a motion to compel?
In which court should the moving party file the motion to compel?
Who pays the costs of a motion to compel?

23. COSTS OF MOTION TO COMPEL – 37(a)(4)
What costs orders must be made by a court if a motion to compel succeeds?
What orders must be made by a court if a motion to compel is denied?
What orders may a court make if it denies the motion to compel in part and grants it in part?

24. HYPO
Plaintiff Zooey obtains an order for a physical examination of defendant Franny. Franny fails to attend for the examination. Can Zooey successfully move to have Franny held in contempt of court? What is the governing provision of the FRCP?

25. SANCTIONS FOR FAILING TO COMPLY WITH ORDER TO COMPEL – Rule 37(b)
What sanctions can be imposed for failure to obey an order by the court compelling discovery? What about failure to obey a Rule 26(f) order?

26. SANCTIONS FOR FAILING TO COMPLY WITH ORDER TO COMPEL – Rule 37(b) - include
Deem facts established 37(b)(2)(A)
Prohibit evidence 37(b)(2)(B)
Strike pleadings 37(b)(2)(C)
Issue Stay 37(b)(2)(C)
Dismiss Action or Part of an Action 37(b)(2)(c)
Treat failure to obey as contempt of court (except for failure to submit to court-ordered mental or physical exam) 37(b)(2)(D), 37(b)(2)(E)
Payment of reasonable expenses by party/attorney
Also applies to failure to comply with Rule 26(f) discovery order -