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How You Can Learn to Stop Worrying and Love Federal Discovery

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How You Can Learn to Stop Worrying and Love Federal Discovery

Discovery can be one of the more challenging parts of a federal civil case. With so many rules, procedures, and opportunities for conflict, it’s no wonder that discovery makes some lawyers worry. This presentation will put your mind at ease with a step-by-step guide to the concepts and tools you need to navigate – and love— federal discovery.

Presenters

Daniel Piar
Senior Staff Author
Quimbee

Transcript

Daniel Piar: Greetings and welcome to how you can learn to stop worrying and love a federal discovery, brought to you by the discovery loving folks at Quimbee. I'm Daniel Piar, a senior staff author, and a former federal litigator. This presentation comes with slides, presenter notes, and all the rules of civil procedure that will be referring to. You can follow along as we go, or just sit back and enjoy the show as we take on the basics of civil discovery in federal court. There's an old joke that goes like this, two new lawyers run into each other in the courthouse. Hey, says the first lawyer, longtime no see. what do you do in these days? The second lawyer says, I practice patent law. I love it. It's great. What kind of law do you practice? The first lawyer looks sadly at the floor and says, discovery. Now that's not the funniest joke you'll ever hear, at least I hope it's not, but it makes a good point.

  Discovery can be very intimidating if you're not familiar with the rules or if you're not experienced yet in federal court. And it can become the most time consuming adversarial and often stressful part of a federal case. There are lots of rules, lots of pitfalls, lots of details, and lots of things you could worry about, but discovery is also one of the keys to successful litigation. And if you understand it and you'll learn how it works, you will love what it can do for you, and your case and your clients. Discovery is a litigation process that allows each party to gather information about the case before the trial. Most discovery involves gathering facts and evidence from the opposing party. In this presentation, we'll cover the basics of civil discovery in federal court. We'll start with a little bit of history.

  We'll talk a about where discovery came from, what it's supposed to do and what it actually does. Then we'll talk about the scope of discovery, what information you can get and what information you can't. Next we'll introduce you to specific discovery tools like interrogatories and depositions. We'll learn how these work and how they can fit into a larger strategy of discovery and litigation. And finally, we'll talk about how to resolve discovery disputes if things go wrong, which they often do. By the time we're done, we hope you'll be able to stop worrying and love federal discovery, or at least learn to like it a little bit. So, without further ado, once upon a time in 1938, to be specific, the federal rules of civil procedure were born, and about a dozen of these rules give us federal discovery as we know it today. One of the goals of this discovery process was to make trials more boring.

  That's right, boring. You know those Perry Mason moments, when a surprise witness suddenly destroys the other side's case and everybody runs out of the courtroom, and it's all very exciting. Those days supposedly are gone. The idea behind the discovery rules was to let each side learn all about the case before the trial. There would be no surprises in the courtroom, no trial by ambush, and this was supposed to make litigation more fair and more efficient. Sometimes it works, but it hasn't always been that way. See, the problem with litigation is it's run by lawyers, and we tend to get combative about things.

  When the civil rules came on the scene, lawyers figured out very quickly that they could use discovery as a sword and a shield. They could beat up their opponents by serving lots of discovery requests, driving up litigation costs, and generally making the other side miserable. At the same time, they could try to manipulate the rules to their advantage, to give away as little information about their own case as they could. And as a result of this approach, discovery all too often is used to either, or embarrass, or wear down the other side. But the more you understand the rules and the concepts, the better you'll be able to deal with all this, and use discovery effectively and avoid being manipulated or harassed by your opponents.

  One of the best ways to stop worrying about something is to understand it. And that's why one of your great assets in litigation is understanding the scope of discovery. In other words, you need to know what information is discoverable and what's not. And this will tell you what you can give, what you can get, and it'll also tell you how to pick your battles during the discovery process. Now, this brings us to our first federal rule of civil procedure, which is Rule 26. And if you're following along at home, you might want to highlight Rule 26B, which is called discovery scope and limits. Rule 26(b)(1) tells us that parties can discover any nonprivileged matter that is relevant to any party's claim or defense. Again, that's any nonprivileged matter that's relevant to any party's claim or defense. And that's a deliberately broad definition of what's discoverable.

  So, basically, if a matter isn't privileged and it has something to do with either side's claims or defenses, it's probably discoverable within this definition. And here's a critical point that's written into the rule, but sometimes overlooked. Information is discoverable even if it's not admissible at trial. And that's because discovery is not just about gathering trial evidence. It's about learning the facts, and those two things are sometimes different. A great example of this is hearsay. So, what somebody told someone else can be really useful information even if you can't get it into evidence at trial. You know knowing that might lead you to other witnesses, or it might lead you to other evidence that you can use. So, keep in mind that discovery and evidence aren't always the same thing. Hearsay might very well be discoverable, even if it's not usable at the trial. Now, to put things in context, as we go through all this, we're going to use an imaginary case during this presentation.

  So, let's imagine you represent the plaintiff in a civil battery case, which is in federal court under diversity jurisdiction. Your client was seriously injured in a local bar when a bouncer hit him over the head with a bottle. The bouncer had a history of violent crime, so you've sued the bar's owner on theories of negligent hiring and vicarious liability. Now, the owner's defending and he says the bouncer acted in self defense after your client attacked him. So, given all of that, what would be discoverable here? Well, we know from our definition, you can discover any nonprivileged information that's relevant to any claim or defense in the case. For instance, you probably cannot get discovery about the owner's divorce settlement, but you surely can get discovery about the bouncer's employment history at the bar. The owner can get discovery about your client's drinking that night, but he probably can't discover your client's credit history.

  Some of these things clearly are relevant and some of them clearly aren't. So, on the one hand, this notion of relevance creates a lot of room for discovery, but there are some boundaries and let's talk about those. We've already seen that privileged material isn't discoverable, and that would apply to things like the attorney-client privilege, the physician-patient privilege, or whatever other privileges your jurisdiction recognizes. In addition, Rule 26(b)(1) says that discovery has to be proportional to the needs of the case. Now, the idea here is that you swat a fly with a fly swatter and not a sledgehammer, right? So, the ultimate limits of discovery can depend on things like the importance of the issues, the party's resources and the burden of discovery versus the benefits it has for the case. So, a $5 million wrongful death case is probably going to justify more extensive discovery than a $5,000 employment case.

  A similar idea shows up in Rule 26(b)(2), which says the court can limit discovery if it is unreasonably cumulative or duplicative, like asking for the same information from 10 different sources. The court can also limit discovery if the information is available in a more convenient or less expensive way than what's been requested. And here again, the rules are simply trying to keep discovery from getting out of hand, given the need and magnitude of the case. For example, in our battery case, let's say the owner keeps surveillance video of the bar. You can probably get video from the night of the attack, but you're unlikely to get all the video the owner has ever shot. That would be expensive, inconvenient, and it would go well beyond the needs of this case. Another limit under Rule 26 involves trial preparation materials. And these are materials that are prepared by a party or its representative either for trial or in anticipation of litigation.

  These materials are also called work product, and the rule we're discussing here is sometimes called the work product doctrine. All of this is under Rule 26(b)(3), which says that these kinds of trial preparation materials generally are not discoverable. For example, let's say that right after the attack at the bar, the owner knew your client was going to sue him. So, to prepare for the litigation, the owner interviewed someone who witnessed the attack and he kept notes of the interview. Those notes probably won't be discoverable because they are materials that the owner created in anticipation of the litigation. So, if you want to know what this witness will say, you'll need to talk to her yourself. And that is the point of this rule. Each side should do its own work and not mooch off the other side. When it comes to preparing for trial, each party should do its own work and it shouldn't be allowed to mooch off the other side.

  And here's another key point that people sometimes forget. The work product doctrine is not the same thing as the attorney-client privilege. Work product isn't limited to materials or communications that involve a lawyer. So, remember the doctrine covers things prepared by a party or its representative. That representative could be a lawyer, but it could also be an employee or a consultant or somebody else. Now, there's an exception to the work product doctrine if the requesting party can't get the information any other way, without undue hardship. For example, you might get the owner's interview notes if the witness died or suddenly fled the country before you could talk to her, but that's a really narrow exception. For the most part, each side is free to prepare its case without the other side looking over its shoulder under this work product doctrine. So, there is another limit on discovery. Now to enforce the limits on discovery, Rule 26(c) provides for something called a protective order.

  And that's simply a court order that says certain things aren't discoverable, or that discovery should be limited in some way. Protective orders are supposed to prevent harassment, embarrassment, or excessive burdens in discovery. So, for instance, let's say the bar owner requests all the emails stored in your client's private email account, starting from the date of the battery. And let's also say that there's some sensitive stuff in there, like love notes between your client and his wife, maybe emails about your client's trade secrets. If you know that, you might want to ask for a protective order to keep those emails out of discovery. Or you might want a protective order that says, if the other side gets these emails, they need to treat them as confidential or handle them very carefully to avoid disclosure. So, protective orders are a flexible tool and lawyers sometimes forget how helpful they can be.

  So, let's pause for just a moment and see where we are. We now know that parties can discover non-privileged, relevant material even if it's not admissible at trial. We've also learned that trial preparation materials or work product usually aren't discoverable. And we've seen that a court can limit discovery to match the needs of the case, or to protect against improper or overly burdensome discovery, and one way of doing that is to obtain a protective order. So, those are some big ideas about the nature and the scope of discovery. Now let's put with those big ideas to work with some of the specific rules and the specific tools that you just might learn to love. But before we forge ahead, let's have a quick word about local rules of court. The federal rules of civil procedure are the default rules for operating in a federal court.

  But those rules sometimes leave gaps, or they might leave room for interpretation. And much of the time, federal courts will fill in these gaps with their own local rules of procedure or with standing orders that do very much the same thing. And there are so many of these rules and orders that we couldn't possibly review them all here. There are literally thousands of these things in district courts across the country. But please remember, you absolutely positively must review the local rules in the court where you're litigating. Look out for any special requirements, or special limitations or special discovery procedures. Because if you get on the wrong side of your judge because you haven't read the local rules, you really will have something to worry about. That's not a position you want to be in. So, make sure to be attentive to the local rules in the federal district court.

  Now, with that being said, the civil rules in general include some requirements for discovery planning and initial disclosures. And you can think of these as ways to kickstart discovery at the very beginning of a case. It's always good to have a plan, and in fact, the civil rules require you to make one. Rule 26(f) says that early in the case, the lawyers have to get together for a planning conference, and among other things at this conference, they have to create a written discovery plan. This includes things like the proposed deadline for finishing discovery, how to handle electronically stored information, any anticipated issues of privilege and things like this. The lawyers will write the plan up, they'll submit it to the court, and then the court will issue a scheduling order under rule 16 to govern the rest of the case. And among other things, the scheduling order will include the deadline for completing discovery. No more than 14 days after the planning conference, each party has to make its initial disclosures to the other parties under rule 26(a).

  So, this is the first point at which the parties begin exchanging sort of real, meaningful information about the case. So, Rule 26 a says each party must dis close for things. "Each person who's likely to have discoverable information plus the subject of that information, copies or descriptions of all documents, electronic data and tangible things that the party has and might use to support its case, a calculation of that party's damages with supporting documentation and any insurance policy that might be used to pay a judgment." Now, a party doesn't have to disclose witnesses or documents if they would be used solely to impeach or discredit the other side's witnesses, but otherwise they need to be disclosed. And importantly, there are basically no excuses for failing to make these disclosures.

  Even if the other side hasn't made theirs, you still have to make yours. And the idea here is to get the information flowing early with no messing around, no obstruction, no combativeness. Just get it out there. Now you've probably noticed the disclosures can be a pretty good roadmap for further discovery, because these will tell you who you should talk to, what documents you should try to get, and what's at stake financially. You might very well identify more witnesses and documents as the case goes along, but the initial disclosures are designed to get the information flowing early with a minimum of fuss, and get the discovery process rolling.

  Now, in general, the parties are not allowed to begin regular discovery until after the discovery planning conference that we just talked about. There's an exception to this under Rule 26(d) which allows doc commitment request to be served earlier. But in general, you need to wait until the discovery planning conference. But once discovery starts, the parties can use these various discovery tools in whatever order they want, and you don't have to wait for the other side to go first. In fact, typically both parties are doing discovery simultaneously. So, now let's talk about these discovery tools. Let's talk about why you should love them, how you can use them and what they do. So, the main discovery tools are interrogatories, document requests, depositions, physical and mental examinations, requests for admissions and subpoenas. And we'll talk about each of these in turn and how they differ from one another because they often do serve very different purposes.

  So, let's start with interrogatories under Rule 33. We'll discuss mechanics first, and then we'll turn to some strategy. Interrogatories are simply written questions that the other side has to answer. You serve these on the other party, usually by sending them to the other party's lawyer. And the standard time to answer interrogatories is 30 days after they're served. Now, the parties can agree to extend the deadline to a longer time, or the court can order extra time. But again, 30 days is simply the default. Each party has to answer the interrogatories in writing and under oath and then sign the answers. Now a party's lawyer can object to an interrogatory. So, for instance, an interrogatory that requests privileged information, and the objections also have to be in writing and the objections have to be signed by the lawyer. So, the party signs the answers, the lawyer signs the objections.

  If a party objects to part of an interrogatory, it doesn't have to answer that part assuming the objection is legitimate, but it does have to answer any parts of interrogatories that it doesn't say are objectionable. And as we'll see later, any objections can be tested with a motion to compel a response. So, let's imagine that the owner's lawyer serves you with a set of interrogatories. And these might include questions like, who was with your client that night? Who did your client talk to about the attack? And what doctors did your client see for his injuries? So, now your client has to answer these questions in writing and under oath. Most likely you're not going to just send these to your client and say, Hey, answer these, take care of this. Instead, you'll go over the questions with him, you'll write the answers and then you'll have your client review them, approve them and sign them.

  That's a perfectly legitimate approach as long as the answers are true and complete, and as long as your client understands that he's responsible for the content of the answers. If there's anything to object to within those questions that you get, you'll need to write the objections out and sign them. And after everything is prepared and signed, you will serve your responses on the owner or on the owner's lawyer. You typically won't file the interrogatories or the answers with the court. You might do so later if they're going to be an exhibit to a filing like a motion for summary judgment. But typically the questions and the answers are simply exchanged between the parties. The court doesn't get involved, at least, at this stage of the game. And of course, to use interrogatories yourself, you'll simply write out your questions. You'll serve them on the owner, but sending them to the owner's lawyer, and you'll wait for a response which you should get in about 30 days.

  So, that's how things work mechanically. Now let's talk about the strategy, because interrogatories are really great for some things, and they're not so great for other things. So, first the bad news. There is a limit to how many interrogatories you can use. So, unless the parties agree differently, or if the court orders something different, you can serve a maximum of 25 interrogatories including subparts on the other side. So, what you can't do is ask a question and then put a dozen subparts underneath it and count that as one interrogatory, right? That 25 total includes all the subparts as well. You can ask a lot in 25 questions, but still that's a limited quantity that you can use. Now, the flip side of this of course is the other is similarly limited, and so you won't get more than 25 interrogatories to answer in a typical case.

  Another disadvantage to interrogatories is that you can't cross examine the answers because they're being submitted in writing. So, that's why we have depositions and we'll talk about those in a little bit. Finally, interrogatories often are not the best way to ask narrative or open-ended questions like explain why this, or what happened after that. Remember the other side's lawyer is probably going to be writing the answers, and you can bet that any decent lawyer is going to make narrative answers about as short and useless as possible. But there is also good news because one great way to use interrogatories is to identify pieces of information or specific things that you can follow up on. For instance, you can use interrogatories to ask the other side to identify witnesses and documents beyond those from the initial disclosures. You can also ask things like who a party has talked to about the events. You can ask where records are kept.

  You can ask what recordings the other side has, things like this. It can also be really useful to ask for other pieces of objective information. So, things like dates or dollar amounts, if those are relevant. These kinds of questions can lead you to other sources of information, or they can suggest things to follow up on with depositions and document requests, and other forms of discovery. So, this goes back to our earlier point about narrative answers in interrogatories. Very often, a better use of interrogatories is to get objective information or yes, no types of answers, instead of inviting storytelling by the other side. Another handy thing about interrogatories is that the other side has to answer them under oath. And you can use this to box them in or to establish facts that will help your case later. So, for instance, you could ask the bar owner whether he checked the bartender's criminal history before he hired him.

  And if the answer is no, then you've got the owner committed to that answer under oath in writing. And if he tries to claim later on that he did run a background check, you'll have something to contradict or impeach him with. So, it's very helpful to get a party committed to a particular fact or a particular story, and you can do that sometimes with interrogatories. As a final word on interrogatories, let's talk about the Rule 33(d) provision on business records. That rule says if an interrogatory can be answered by examining or summarizing business records, then the responding party can identify the records and give the requesting party a reasonable opportunity to examine and copy them. So basically, if you are the responding party, you can let the other side do its own work, reviewing the records, instead of doing it for them. For example, let's say that you served an interrogatory that asked the owner to list all job applicants for the past 10 years and state whether he conducted a criminal background check on any of them. By the way, this is a great way to use an interrogatory, right?

  You're asking for objective information instead of a narrative answer. So, let's say that to respond to this interrogatory, the owner would have to go review all his applicant files for the last 10 years. So, instead of sifting through the files himself, he can respond to the interrogatory by identifying the files and then giving you a chance to review them and copy them. That is a legitimate way to answer this type of interrogatory if the answer can be derived from business records. Now, the owner might very well want to review those records himself, so he knows what's in there, but Rule 33(d) does allow this procedure and it can sometimes be really convenient.

  Now, this segues nicely into our next discovery tool, which is a request for production of documents. And document requests are governed by civil Rule 34. Now, for our discussion here, we're going to focus on the production of documents, but Rule 34 actually covers a much broader range of things. The rule lets you inspect, measure, copy, sample, or test any documents, electronically stored information, tangible things, land or other property that are within the other party's possession, custody or control. Now that's a real mouthful. So again, we're going to focus on document to get the general principles down, but do keep in mind that this rule sweeps a bit more broadly than that, and that can be really helpful depending on the case. So, let's look at this first from the perspective of the requesting party. As with interrogatories, what you'll do is simply write a set of document requests describing the documents that want, you'll serve the request on the other party and wait for your reply.

  Now, each request must do several things. You have to specifically describe the documents or the categories of documents that you're requesting. You have to specify a reasonable time, place and manner for the inspection, and you have to specify the forms in which electronically stored data should be produced. Now, we'll talk more about electronic data in a minute because that's really its own category in certain ways. But for now it's enough to understand you simply need to identify the requested documents, and you need to state where, when and how they should be produced. The party who receives the document request has 30 days from service to answer them in writing. Unlike interrogatories though, these responses don't have to be made under oath. Now, for each document request or each category of documents, the responding party has to either state that it will produce the document or it has to state a specific objection to producing them.

  And if only part of a request is objectionable, then the responding party has to state the objection, and they still have to produce whatever they don't object to. If a party makes an objection, it has to state whether it's withholding any documents based on the objection. And again, the objecting party still needs to produce any non objectionable documents. Now, when it comes to actually getting the documents to the other side, the responding party can produce copies of the documents instead of the originals. And often what happens is that the responding party will simply copy everything and send the copies to the other side. As an alternative, you could lay out the documents in a big room and open the room to the other side's lawyer and say, look, come inspect the documents. But a lot of times it's just more convenient all around to send a huge stack of documents that you photocopied and be done with it.

  What you do have to remember is that when you produce documents however you produce them, the responding party has to produce them as they're kept in the ordinary course of business, or label them to match each category that the other side requested. So, you do have to produce these in a somewhat organized way. You can't just shuffle all the papers and throw them at the other side, right? So, let's imagine, for instance, two specific document requests that you might use against the owner of the bar. So, first let's say you ask the owner to produce all employee personnel files from the last 10 years, and second, let's say that you ask for are any documents that the owner has that relate to the attack, including police reports, any notes, any videos, insurance documents, and communications. Now, the owner might object to some of these requests. So, for instance, he might object that the personnel files are irrelevant or that they contain confidential information about employees. Or he might object that your second request includes documents that fall within the attorney-client privilege, because technically that request could include communications with his lawyer.

  Now, a lot of times when the other side raises objections, you're going to talk to them about it, and you might negotiate with the other lawyer about what the party will eventually produce. So, in this case, you might concede that you're not looking for attorney-client privileged information, and accept whatever other documents the owner produces. As far as the personnel files go, maybe you would agree the owner will produce any personnel documents that involve background checks, but that he doesn't have to produce confidential medical information or financial information about employees. These kinds of agreements and negotiations are really important in discovery. There are a way to keep discovery moving without getting the court involved. And as we'll see later, that can be very helpful. So, let's say that you get to the point where the owner's ready to actually turn over the documents. He's served written responses, and he says, I'm going to produce this, this and this.

  Now you've got to get your hands on the actual documents themselves. And as we've mentioned, this can happen in a couple of ways. The owner's lawyer might collect all the documents at his office. He might put them in a conference room and say, come on in and look at these. You can copy whatever you want. That is a permissible way to do a document inspection. He's making the documents available for inspection and copying. Or again, a lot of times it's simply more convenient for the lawyer to the documents from the client. The lawyer's going to photocopy everything, and he's going to send you the whole stack of photocopies and be done with it. Now, unlike interrogatories, there are no limits in the rules about how many document requests you can serve on the other side. So, these can be really useful for getting lots of information. You still might be subject to the general limits on discovery under Rule 26.

  So, things like proportional to the needs of the case, but there's no specific numerical limit. Remember too, we said a few minutes ago, Rule 34 also applies to tangible things, land and other kinds of property. So, in this case, for instance, you could request to inspect the bar where your client was injured. Maybe you want to get the lay of the land, or take some photographs or make some measurements. If you had a case that involved a defective product, you could ask for access to the product to inspect it or test it. Or if you had a dispute about real estate, you could ask for access to the land, to conduct a survey. So, interrogatories get you written answers, which can be really helpful. This Rule 34 process gets you things to look at, and sometimes that can be even more helpful. Now let's talk about electronically stored information, or this is also called e-discovery.

  This is a really big topic all of itself. We're going to touch on just a few of the basics here, but I would encourage you to go out and learn more about e-discovery because it's becoming a fact of life and there are lots of ins and outs that you need to know about. But again, here's the basic stuff. Rule 34 says you can request electronically stored data or data compilations. Now, one of the big issues in e-discovery is, what form do you have to produce the information in? For instance, should everything that's electronically stored be produced on paper, should it be produced in PDF format, in the native format? Should it be translated into some other format? And of course there are lots of formats out there, and different kinds of formats might make some kinds of data more or less useful. And of course, formats are changing all the time and you or the opposing party might lack the software or the hardware to handle certain kinds of files or certain kinds of data formats.

  So, it's worth giving this stuff some thought in advance. Rule 34(b)(1)C says that a requesting party can specify the form or forms in which the electronically stored information should be produced. Rule 34(b)(2)(D) says that the responding party can object to the requested form, and it must then state the form or forms that it intends to use in turning over the electronic information. If the request doesn't state a form for production of this information, then the responding party has to the information in the form in which it's ordinarily kept, or in a reasonably usable form. And a party is not required to produce electronic information in more than one form. So, all of this in some means, you need to know what you can use, what you can handle, and you should ask for when it comes to electronic information.

  Now, ideally, you'll have this all figured out before you serve your document requests. E-discovery and the different forms for data production are mentioned under Rule 26(f) as things that you should talk about with the other side, during the Rule 26(f) planning conference. And if you can do that, you're going to avoid nasty surprises down the road. That would be great. So, let's pull this together with an example from our case. Let's say that you want any digitally stored video of the bar from the night of the attack, and you also want any emails that the owner sent or received about the attack after it happened. Now you can cover each of these with a separate request for production, and you want to specify the form in which the data should be produced. So, you might specify that the video should be produced in MP4 format, and the emails should be produced in their native format, which is the format in which they were originally created.

  And let's say that you're in luck, the owner happens to store his videos as MP4 files, and so to respond to that request, he can simply give you a copy of the relevant file. Easy. But let's say when it comes to the emails that he and his lawyer have no idea what the native format is, they have no idea how to produce emails in native format anyway. And let's say that there are only about a dozen emails that are relevant and should be produced. So here, the owner could object to the requested format, and then produce the emails in a different format, like a PDF or something like that. More likely because they're only a few of them, he'd probably just print them out and give them to you on paper. But you can see that in a bigger case, data format can be a really big issue, especially if you're talking about a case with hundreds or thousands or millions of emails or other kinds of electronic documents.

  And of course there's much more to e-discovery. You can get into the issues about database formats, issues about metadata, how to recover archived data and who pays for that. That's really getting into the weeds for our purposes here, but remember, those issues are out there and electronic data is something you really need to think about before discovery starts so that you can plan for it, you can avoid problems or confusion down the road. So, now let's shift gears and talk about depositions. A deposition is simply a proceeding where a person, called a deponent, is required to answer questions under oath. The standard typical deposition is called a deposition on oral examination, which involves live questions and answers. There's a less common type of deposition called a deposition on written questions, and we'll talk about that a little bit later. So, the main rule for depositions is civil Rule 30, and again, that's depositions on oral examination.

  So, Rule 30 allows a party pose any person without the court's permission, except in very limited situations. So, for each person you want to depose, you need to serve the other side with a deposition notice. And this is simply a formal notice that identifies the opponent and it specifies the time and the place for the deposition. Your deposition notice also has to state the method for recording the deposition, whether that's video recording, or maybe a stenographic transcript by a court reporter. And you can notice a deposition without talking to the other side first, as long as the notice is reasonable. You got to give a reasonable time and so forth. But in a lot of places, this would be considered sort of rude. You don't just slap a deposition notice on somebody. A more common approach is that you'll simply talk to the other side first and you'll agree on a deposition schedule.

  You can do this at the Rule 26(f) planning conference, or you can do it later on. But in our example case, you might agree with the other lawyer that you'll depose the bouncer on May 1st, the owner on May 5th, and two other witnesses on May 15th. You might also agree the owner's lawyer will depose your client on May 30th, and depose your client's doctor on June 15th. You still need to send out the formal deposition notices for the depositions you're taking, but now you've got it all worked out in advance. Nobody's surprised, nobody gets upset. That's a good way to do it. You can also require a deponent to bring documents to the deposition. So, if you're deposing a party, you can include a Rule 34 document request with the deposition notice, and have them bring documents to the deposition. If it's a non-party opponent, then you need a subpoena, and we're going to talk about those later.

  Strategically though, it's really better to get your documents before you take the deposition, if you can do that. And of course, the reason for this is you're going to be better prepared for a deposition if you've got the documents beforehand, you can look them over, you can figure out what's in them and what you need to ask about. Now, if you're deposing a corporation or some other entity, the then the deposition notice has to describe what topics you're going to cover in the deposition. Rule 30(b)(6) says that the entity then must designate one or more deponents to testify about the designated topics on its behalf. The deposition has to be taken before an officer who's authorized to administer oaths, and that is typically a court reporter or a videographer. And of course, the officer then must administer the oath to the deponent before the questioning begins.

  Now, the questioning at a deposition can be either directed examination or cross examination, depending what it would be at trial. So, for instance, if you deposed the bar owner, you'd be cross examining him because he's the opposing party. If the other lawyer is deposing your client, then that would also be cross examination. Both sides can ask questions of the deponent, but the party who's taking the deposition gets to go first. Let's talk about objections. A lawyer can make objections at a deposition, but this process is often misunderstood, so let's clear it up here. Rule 30(c)(2) allows objections during the examination. Now, these might be objections to the form of questions, it might be objections to the form of answers, or the admissibility of answers, or they might be objections to the deposition procedure itself. And that would include things like the officer's qualifications or the manner of taking the deposition.

  Any of these objections have to be noted on the record of the deposition, but the questioning will still proceed. And that really important. So, even if the deponent's lawyer or the opposing lawyer objects to a question, the deponent still has to answer the question, with very limited exceptions. A lawyer can tell a deponent not to answer a question only in three situations. To preserve a privilege like the attorney-client privilege, to enforce a court ordered limit on questioning, or to present a motion to terminate or limit an abusive deposition. And these are really unusual circumstances. So, in general, the deponent has to answer all the questions despite any objections. Rule 30 says that any objections should be concise, non argumentative and non suggestive. So, a lawyer should not use objections to coach the witness, or as a way to tell the witness what they should be saying. That's not appropriate.

  If you're defending a deposition instead of taking the deposition, you should be on your toes about objections because of Rule 32. So, Rule 32 says depositions can sometimes be used at trial, for example, to replace live testimony or to impeach a witness. And this is where failing to object can come back to haunt you. So, here's a pitfall for the unwary. Rule 32(b) says that at a trial, a party can object to the admission of any deposition testimony as if the witness were testifying live. So, for example, you could object that certain testimony is irrelevant or hearsay at the trial. But there are exceptions to this under Rule 32(d), which says some objections can be waived if they're not made at the deposition. So, for instance, any objections to the witness's competence, to relevance, to materiality or the form of a question or answer must be made before or during the deposition, if the problem could have been corrected at that time.

  So, for example, let's say the owner's lawyer deposed your client and asked him whether he'd ever smoked marijuana. And you think this question is irrelevant and you want to object. Now, the relevance problem could be corrected at the deposition if the lawyer withdraws the question, or maybe he limits it to asking, say, whether your client smoked marijuana on the night of the attack as opposed to ever. But if you don't make that objection at the deposition, you've probably waived the objection for trial. And the same goes for other kinds of objections that are listed in Rule 32(d). So, the point behind this waiver rule is to prevent cluttering up the trial with objections that could have been resolved at the deposition or even before the deposition. So, if the other side is questioning a deponent, you really should be thinking ahead of trial and making any appropriate objections on the spot so that you can preserve them for later, you're not going to lose them through a waiver.

  Now, this brings up another deposition pitfall. A lot of times at the start of a deposition, one lawyer says to the other, can we agree to "the usual stipulations" or something like this. Now, it is true that rule 29 says parties can agree or stipulate to deposition procedures that differ from those in the civil rules. But the civil rules do not define what the "usual stipulations" are. And that's where people can get in trouble. Sometimes lawyers assume that the usual stipulations means they're going to agree reserve all objections until trial or something like this. But I would bet you that half the time, the lawyers who ask for the usual stipulations probably don't even know themselves, what they mean by that. They just ask this out of habit, maybe they're trying to gain some kind of advantage that puts you on the spot, who knows.

  So, if anybody asks you to agree to the usual stipulations, ask them exactly what they mean by that. What do you mean when you say the usual stipulations? And if they can't tell you, then don't agree. If they can tell you, make sure that you're on board with whatever those stipulations are, because otherwise, you might get sucked into some kind of agreement that you don't like, or a later dispute about what you agreed to. And that can be a mess. When in doubt, the best bet is just to say, I'll agree to follow the rules of civil procedure. And that way you'll know exactly what rules are in play and exactly what you're committing to. Now, let's get back to the deposition itself. So, the lawyer who noticed the deposition will question the defendant, and when that's done, the other lawyer can ask questions if she wants to.

  For instance, if you cross examine the owner when you are deposing the owner, the owner's lawyer might want to conduct her own questioning, maybe to follow up on your questioning, to clarify something or to make a point. Sometimes that's a matter of strategy. How much do you want to give away? How much do you feel you need to correct on the spot? But you do have the opportunity to examine after the deposing lawyer is done with the deponent. Now, believe it or not, some lawyers behave badly during depositions. They might try to argue with the witness or bully or intimidate the witness, or even the opposing lawyer, or they might just be generally unpleasant and try to make the experience miserable. Now, in depositions, the judge isn't there to supervise, but if get bad enough, Rule 30(d) says you can suspend the deposition and ask the court to terminate or limit the examination.

  And the court can also impose sanctions on anybody who interferes with a fair deposition. And we'll talk more about sanctions when we get to other discovery disputes, but you do have the ability, if things are bad enough, to stop the deposition, go to the court and ask the court to take control of the process in some way. So, after all the questioning is done, but before the deposition ends, either the deponent or a party can ask for the deponent to review the recording or the transcript when it's ready. So, the deponent will have 30 days after the transcript or the recording is ready to make any corrections or changes to their testimony, and they need to do this in writing. So, note here though, a deponent or a party has to make the request to review before the deposition ends. So, if you want the deponent to review it, don't let that opportunity slip by. Make sure you ask for that before the deposition closes.

  And as with other forms of discovery, you generally won't file the deposition transcript with the court unless you need to later as part of a brief, or a motion or for the trial. Now, Rule 31 allows for deposition on written questions. And again, that's a less common procedure, so we're not going to cover that procedure in detail. But the general idea is, before the deposition date, each side can submit written questions to the officer, the court reporter. And then at the deposition, the officer will read the questions to the defendant and take down the answers, but there's no live questioning. It's all done off these written questions that are submitted in advance. Now, for any kind of deposition, a party may take no more than 10 depositions in a case. That's the default number. Each deposition is limited to one day of seven hours. But the court can order more depositions or longer depositions if they're needed, or the parties can agree to have more depositions or longer depositions.

  And you might do that if it's in especially complex case or something like that. Unless there are exceptional circumstances, each deponent can be deposed only once in a case. So, you get one shot and you want to make it count. And that's why strategically, it's often best to take your depositions only after you've gotten responses to your interrogatories and your document requests. That way you've got some basic information, you'll be much better prepared for questioning, and you can really take advantage of that opportunity to sit across the table from somebody and ask them questions.

  Another tool for discovery is a mental or physical examination under Rule 35. Now, we won't cover this in depth because it's not as common as some of these other tools, but it's there if you need it, and sometimes really helpful. So, basically Rule 35 says you can get a mental or physical examination of a party or someone under a party's legal control if that person's mental or physical condition is at issue in the case. You need to ask the court for permission, and need to show good cause for the examination. In our case, in our sample case, this might actually apply. For example, if your client is claiming he has permanent injuries, the owner might very well ask for medical examination so that he can check those out. Again, this doesn't come up in every case, but it's a really helpful rule when you need it.

  So, don't forget Rule 35. Now let's turn to Rule 36, which has to do with requests for admission. So, it's really helpful when your opponent admits to something during the litigation. They can be locked into that admission, and that can shortcut the need for evidence and proof of the trial. So, it can make your job much easier. Rule 36 allows you to request admissions from the other party that'll be binding on them throughout the case. Requests for admission need to be in writing and they need to be served on the other party. These requests can inquire about facts, the application of law to fact, opinions about these things or the genuineness of a document. The party who receives the request has 30 days to return a written signed answer, or objection to each request. If the party doesn't serve a timely response, then the matter is deemed to be admitted.

  Now, a party has several options for responding to any particular request for admission. One is to admit whatever's being asked. If a party doesn't admit what's being asked, then the party can either deny it or it can explain why it can't either admit or deny it. So, you sometimes see parties say, I don't have enough information to either admit or deny this thing, so I'm not doing either. If a party does that though, it also has to state that it's made a reasonable inquiry into the matter, but that it still lacks enough information. Or as we've said, a party might object to the request for some reason. If you think the other party's response to one of your request is inadequate, you can bring a motion and you can ask the court to rule on their response. If the court finds that an objection is improper, it must order the objecting party to respond.

  And if the court finds an answer to be inadequate, it can order an amended answer or it can deem the matter to be admitted. So, there are several ways you can use these to lock your opponent into some sort of admission that can help you later in the case. Now, once a party makes a Rule 36 admission, it stuck with it unless the court lets the party withdraw or amend it later. And the court can allow a withdrawal or amendment if that would help in presenting the merit to the case, and if it wouldn't prejudice the requesting party. To apply this to our example case, let's say that the evidence shows the owner didn't do a criminal background check on the bouncer. You can lock this in by serving a request for admission, asking the owner to admit that. And if the owner makes the admission, then that matter is conclusively established for the trial, unless the court allows him to amend or withdraw it later.

  Let's shift our attention now to getting information from non parties. Because most of what we've talked about so far has involved getting discovery from the opposing party. Things like interrogatories, document requests and requests for admission are used against other parties, not against non-party witnesses. But now let's talk about these non-party witnesses. Let's say, for example, that two of the bars patrons saw the attack on your client. So, they're witnesses, but they're not parties to the case. Your client doesn't control them and neither does the bar's owner. And let's say that these two witnesses just don't want to get involved and they're not going to cooperate voluntarily. You can use a rule 45 subpoena to require these witnesses to appear for a deposition, to turn over documents and to appear at trial to testify. A subpoena is on a form issued by the court, and the clerk of the court has to give have blank, signed subpoenas to any party who requests them.

  The party then fills out the subpoena, it specifies who it's for and what they're required to do, and then the party must serve the subpoena on whomever it's directed to. So, for a deposition, for example, you'd serve a subpoena on each opponent. You'd tell them they must appear for a deposition at a designated time and place. You can also use a subpoena to require witnesses to produce documents they might have. Here, for example, maybe notes in a diary or communications with other people about the attack. Rule 45 includes some really detailed rules about the geographic limits of a subpoena. The gist of it is that whoever is subpoenaed has to comply within a 100 mile radius or within the state where she lives or works. Somebody who is subpoenaed can also ask the court to quash the subpoena, which means declare it invalid or to limit it in some way.

  But if a subpoena is not quashed, failing to comply with a subpoena will subject whoever is being subpoenaed to penalties, including contempt of court. So, a subpoena is a serious thing. And again, it's a really useful way to get information from non parties. Now, at this point, let's tie up a loose end and let's talk briefly about expert witness discovery. And that's a little subset of the overall process. Rule 26 includes some special procedures for expert witnesses. So, the first thing we need to do is distinguish between consulting experts and testifying experts. Consulting experts are experts who simply help a party in preparing for trial, but who won't testify. And of course, testifying experts are experts who might testify at the trial. Consulting experts usually don't factor into discovery, and this comes out of that work product doctrine that we discussed before. So, unless there are exceptional circumstances, a party cannot get discovery from the other side's consulting experts. And that's rule 26(b)(4)D if you want that rule.

  So, testifying experts are where it's at for discovery. Each side has to disclose any expert who might testify at trial. Usually this disclosure has to be made 90 days before trial, or at some other time that the parties agree on or the court requires. And the form of these disclosures is really specific. If the expert is hired to testify, or if the expert is a party's employee who regularly gives expert testimony as part of her job, you need to have a written report about the expert. And this report must include the expert's opinions, the basis for the opinions, the facts or data that the expert relied on, supporting exhibits, the witness' qualifications, including their publications from the last 10 years, all the cases where the experts testified in the last four years, and how much the expert is being paid.

  And you'll find all that stuff under rule 26(a)B. After the expert is disclosed by delivering this report, the other side can depose the expert. And if you're taking that deposition, you better get your checkbook out because the rule says the deposing party must pay the expert a reasonable fee for time spent in the deposition. And I will tell you, most of these folks don't work cheap. Now let's talk about supplementing discovery. If you learn, for example, one of your responses is wrong, or if you find new information and you learn our response is incomplete, you need to supplement your response under rule 26(e). And the heading of that rule pretty much says it all, supplementing disclosures and responses.

  So, if you learn that a disclosure or a response is wrong, or it's incomplete, you've got to fix it in a timely manner, which pretty much means right away. To be a little more specific, you have to supplement or correct the disclosure or response, but you don't have to do it if the additional information has already been disclosed during discovery or otherwise made known to the other side in writing. But basically you've got to make sure the other side has the correct information. And as we're about to see, if you don't do that, you might be in for a little trouble because there's a whole bunch of stuff in these rules about discovery disputes and sanctions.

  So, let's begin that part of things with rule 26(g), which says, "All discovery materials, disclosures requests, responses, and objections must be signed by the party's lawyer." And when you, the lawyer sign something, you certifying that based on a reasonable inquiry, the responses are complete, correct, warranted by the law, not for an improper purpose and not unreasonable, or burdensome or unduly expensive. If a lawyer violates any of these certifications, the court can impose sanctions on the lawyer, on the party or both. Now, a more common discovery problem usually is when the lawyers disagree about what's discoverable, especially if one side objects to producing something or refuses to provide some discovery. And this brings us to civil Rule 37. So, let's say you've asked the bar's owner to reduce all criminal background checks of employees that he's conducted for the past five years.

  The owner's lawyer objects to this and says the documents are irrelevant, they would invade the privacy of other employees. But you think these things are discoverable and you want to get them. So, what do you do now? Well, you could file a Rule 37 motion to compel. Now, before you do that, Rule 37(a)(1) says you've got to confer in good faith with the other side, to try to resolve the dispute without getting the court involved. And I'll tell you, courts hate discovery disputes. So, if you're going to go in there with a discovery dispute, make sure you've talked to the other side first.

  So, Rule 37(a)(3) authorizes motions to compel in a few different specific situations basically if there's a dispute about producing discovery or whether something's discoverable, and the court then can rule on the motion. If the court denies the motion to compel, the court can issue a protective order and assess attorney's fees against the moving party. If the court grants the motion to compel, or if the opposing party provides the material after the motion's filed, the court can order the losing party to pay expenses in attorney's fees, unless there was a good reason for objecting in the first place.

  Now, if the court order something produced and the party doesn't produce it, that triggers Rule 37(b), which is failing to comply with a court order. And here again, the court may order sanctions. There's a whole list of sanctions potentially in Rule 37(b), but these are just suggestions, and the court has lots of freedom to craft appropriate sanctions. And some of these are quite severe. They can include striking pleadings. They can include dismissing a case. They can include an entry judgment, and I've even seen courts order lawyers to take remedial civil procedure courses. So, of course that's the worst possible outcome. Don't put yourself in that position, but do be aware of Rule 37 and the opportunity to dispute discoverability or to have the court rule on objections to discovery. So, we've covered a lot of ground here, and we thank you for covering it with us. Hopefully you're starting to feel more comfortable, more confident and less worried about federal discovery, and you might even come to love it. Best of luck and thanks again.

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1h 34s

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