#12243 - Discovery - Civil Procedure

STAGE SIX: DISCOVERY

1. General Discovery – FRCP 26

   1. Synthesized Rule/Procedure

      1. Π/Δ should meet in a 26(f) conference at least 21 days before the FRCP 16(b) scheduling conference.

      2. ASAP, but within 14 days after 26(f) conference, Π* must provide Δ* with the names and locations of witnesses, documents, damages, and insurance, and vice versa.

   2. Textual Rule

      1. Required Disclosures: Π* must provide Δ* with:

         1. the name and contact of each individual likely to have discoverable information as well as the subjects of that information that Π* may use to support its claims or defenses;

         2. name/location of documents;

         3. a computation of each category of damages;

         4. any insurance agreements related to suit. FRCP 26(a)(1)(A).

         5. Timeline: within 14 days of 26(f) conference. FRCP 26(a)(1)(C).

      2. Scope of Discovery: Δ/Π may obtain discovery regarding any nonprivileged matter that is relevant to Π/Δ’s defense or claim. FRCP 26(b).

      3. Timeline: discovery begins after the FRCP 26(f) conference, except for required disclosures. FRCP 26(d).

      4. Supplement: if Δ* remembers something later, Δ* must supplement the testimony etc. or risk FRCP 37(a)(1) sanctions.

      5. Conference: Π/Δ should meet at least 21 days before FRCP 16(b) scheduling conference, arrange for settlement or resolving case, arrange for disclosures required by FRCP 26(a)(1), etc. FRCP 26(f).

         1. E-Discovery: consideration of e-discovery should be made during the design of the discovery plan. FRCP 26(f)(3)(C).

   3. Analysis

      1. Purpose

         1. Under FRCP 26(b), Π/Δ must show that info sought appears calculated to lead to discovery of admissible evidence.

         2. Π* is not required to disclose their attorneys’ work product during discovery. The purpose of discovery is to narrow and clarify issues as well as ascertain facts, but not the other party’s work. Hickman.

         3. Before proceeding with anything, both parties must make commonsense determinations regarding

            1. all the circumstances;

            2. that info is significant enough to justify discovery;

            3. that the discovery tool is most efficacious and cost-beneficial;

            4. and that the timing of the probe is sensible. In re Convergent Techs.

         4. If the discovery request is meant to harass, Π* may be sanctioned or Δ* may not have to respond until completing substantial discovery. In re Convergent Techs.

      2. Required Disclosures

         1. This includes all info not admissible as evidence but which may lead to admissible evidence.

         2. This is enforced by FRCP 37(c)(1), which forbids nondisclosed materials from being used including in discovery (e.g. Δ questions deposed witness re: undisclosed material) .

         3. If Δ* is excused because the discovery was inaccessible (e.g. e-discovery): FRCP 26(b)(2)(B).

      3. Preservation of Evidence

         1. All evidence must be preserved or risk of sanctions or criminal punishment.

      4. Relationship to FRCP 8, 9 & 11

         1. Discovery may not be used to assess whether a cause of action exists or who the Δs are. In re I35-W Bridge Collapse Site Inspection (D. Minn 2007).

         2. Information likely to be found in discovery may not be used to comply with FRCP 11. In re Landry-Bell (W.D. La. 2005).

            1. But Π may get some discovery prior to filing an amended complaint when the complaint states a claim but lacks sufficient detail. Zavala v. Wal-Mart Stores, Inc. (D.N.J. 2005).

         3. Discovery may be used to satisfy the particularity requirements of a special pleading under FRCP 9, however. Remnes v. Int’l Flavors & Fragrances, Inc. (N.D. Iowa 2006).

      5. Timeline

         1. 21(a)(1)(A) automatic disclosures, then 26(f) conference, then 16(b) conference (within 90 days of Δ’s appearance or 120 days of service), then discovery.

         2. Experts must appear 90 days before trial.

   4. Cases

      1. Hickman v. Taylor (U.S. 1947, 344): lawyers’ work products during discovery are protected and not available; all other non-privileged matter that is relevant to a claim or defense should be made available, however, because there is now no such thing as a “fishing expedition.”

      2. In re Convergent Techs. Secs. Litigation (N.D. Cal. 1985, 347): Δ sent 1000 “contention” interrogatories in response to Π’s complaint. Since the purpose of these is likely gaming, Π doesn’t have to respond until completing substantial discovery.

2. Pretrial Conference – FRCP 16; 26(f)

   1. Synthesized Rule/Procedure

      1. Π/Δ should attend the pretrial conference with the judge ASAP, but at least 21 days after their 26(f) conference. If they don’t show up or are unprepared, they may be sanctioned.

   2. Textual Rule

      1. Purposes: establish control, improve quality of trial with preparation, prevent wasteful activities, and facilitating settlement. FRCP 16(a).

      2. Scheduling Conference: the court must make a scheduling order ASAP, within the earlier of 120 days after Δ has been served or 90 days after Δ has appeared. FRCP 16(b).

      3. Contents: scope and extent of discovery, dates for pretrial conferences and trial, etc. FRCP 16(b).

      4. Attendance: Π/Δ should attend with someone who knows things. FRCP 16(c).

      5. Sanctions: if Π/Δ fails to appear, is not prepared, or fails to obey a scheduling order, may be sanctioned, including with attorneys’ fees, unless noncompliance was substantially justified. FRCP 16(f).

   3. Analysis

      1. Scheduling & Management Conference

         1. The court may require Πs to specify info they are required to find pursuant to FRCP 11(b)(3) (factual contentions have evidentiary support). E.g., may dismiss case because Πs fail to specify uranium injuries. Acuna v. Brown & Root, Inc. (5th Cir. 2000).

3. Depositions – FRCP 27–32

   1. Synthesized Rule/Procedure

      1. Π* may depose Δ* or a nonparty, but the number of depositions is limited. Objections during depositions are also limited.

   2. Textual Rule

      1. Preservation of Evidence: depositions may be used to preserve evidence even though Π shows Π is unable to commence litigation at the moment. FRCP 27.

         1. In this sense a witness who may not be available later can have their testimony used in court. FRCP 27(a).

      2. Procedure: depositions may be requested on “reasonable written notice.” FRCP 30(b)(1).

         1. A deposition may be used in other depositions or as evidence in trial instead of testimony if a witness cannot attend. FRCP 32(a).

      3. Limits: Π/Δ has 10 per side. FRCP 30(a)(2)(A).

         1. Each deposition may be 1 day of 7 hours. FRCP 30(d)(1).

         2. There are time limits on how far in advance Π* may ask Δ* to bring documents. FRCP 30(b)(2).

      4. Sanctions: provided by 37(b) when a party witness fails to attend, and 37(d) when the party fails to attend its own deposition. FRCP 37(b), (d).

      5. Nonparty Witnesses: may be subpoenaed via FRCP 45.

      6. Objections: If there is an objection, the exam or testimony proceeds but is allowed subject to the objection. FRCP 30(c)(2).

         1. Limitations on Lawyer: objections must be stated concisely and in a nonargumentative manner. FRCP 30(c)(2).

         2. Sanctions: 30(d)(2).

      7. Recording: may be made via video or audiotape, FRCP 30(b)(3)(A), or some other method, FRCP 30(b)(2)(B).

      8. Interrogatories: depositions may be sent via interrogatories and discussed. FRCP 31.

      9. Representatives: Δ may send a knowledgeable representative, if necessary. FRCP 30(b)(6).

   3. Analysis

      1. Procedure

         1. These are interviews normally held in interrogating lawyer’s place of business.

         2. Some objections waived are in 32(d)(3)(B), e.g. to the notice.

            1. If Δ*’s lawyer has an objection, these are generally not waived if they are not brought up during the deposition but Δ*’s lawyer might ask Π*’s interrogating lawyer to rephrase the question.

            2. For the most part, the deposition will proceed and anything objected to will be stricken later.

      2. Corporations

         1. In deposition notification, party may require corporation to designate a person to answer questions regarding certain subjects, under FRCP 30(b)(6).

4. Interrogatories – FRCP 33

   1. Synthesized Rule/Procedure

      1. Π* may write questions to Δ* and Δ* must respond, although not immediately.

   2. Textual Rule

      1. Interrogatories: these are written questions answered under oath.

         1. Π/Δ are limited to 25 per party. FRCP 33(a).

      2. Contention Interrogatories: Π* is allowed to ask a question seeking Δ*’s opinion, even about the law. Δ* is required to answer it, although Δ* may do so in general terms. FRCP 33(a)(1).

   3. Analysis

      1. Contention Interrogatories

         1. These are now limited to 25 per party.

   4. Cases

      1. In re Convergent Techs. Secs. Litigation (N.D. Cal. 1985, 347): Δ sent 1000 “contention” interrogatories in response to Π’s complaint. Since the purpose of these is likely gaming, Π doesn’t have to respond until completing substantial discovery.

5. Producing Documents – FRCP 34

   1. Synthesized Rule/Procedure

      1. Π* may ask Δ* for documents, which Δ* must provide if reasonably related to the litigation.

      2. Δ* has burden of showing why the request should be denied. Cost is not an adequate reason.

   2. Textual Rule

      1. Document Inspection: parties may demand an opportunity to inspect, copy, test, sample, any electronic or tangible things possessed by other parties or in their control. FRCP 34.

      2. Entering Property: parties are authorized to enter property for purposes of testing or measuring. FRCP 34.

      3. Procedure: Π should send requests to Δ’s lawyer with “reasonable particularity,” e.g. 26(a)(1)(A) disclosures. FRCP 34.

         1. Objection: Δ* has burden of showing why discovery may not be okay.

      4. E-Discovery: the form for the production of e-discovery. FRCP 34(b).

   3. Analysis

      1. Control

         1. Δ* is required to turn over anything within Δ*’s “control.” This rule is governed by Societe Int’l v. Rogers (U.S. 1958), where Π, Swiss holding company, had more influence than Δ in getting records held by Swiss banks, and therefore had “control.”

            1. An employer “controls” a pension plan managed by...