DISCOVERY

1
 Pre-Answer Motions
Service of
The The
Attacking The Complaint
Complaint Complaint &
Summons
Answer To The Complaint

Disclosure & Discovery

Joinder of Claims & Parties

Pre-Trial Motions to
Dispose of Case

The Erie
Trial
Doctrine

Post-Trial Motions & Judgments & The Law of

Proceedings Preclusion
2
Purpose of Discovery

The basic purpose of discovery is to take

the “game” element out of trial
preparation by enabling parties to
obtain the evidence necessary to
evaluate and resolve their disputes
beforehand.

3
Duty to Preserve Critical
Evidence
A litigant may be obligated to preserve
what it knows, or reasonably should
know, will be critical evidence in a
pending action or one in the offing.
William T. Thompson Co. v. General
Nutrition Corp., 593 F. Supp. 1443
(CD Cal. 1984)
4
 Duty to Preserve Critical Evidence
P alleged that D illegally copied P’s computer
accounting programs. It became clear in pre-litigation
negotiations, and certainly by the time the action was
filed and served, that the central issue in dispute
related to the origin of the source code for D’s
program. D nevertheless continued a practice of
regularly destroying older versions of its source code
as newer ones were developed, making it impossible
to determine the original configuration. P moved to
strike D’s answer and to enter D’s default. D argued
that it was merely following its routine practice and
that there had been no demand that it preserve code.
How should the court rule? 5
Duty to Preserve Critical
Evidence
HELD: D was under a duty to preserve
the source code. Its intentional
destruction of the critical evidence
supported a default sanction. 133 FRD
170.

6
 AL
FEDER
RULE
S OF

CIVIL URE
Initial Disclosure
ED
PROC

Rule 26(a)(1) requires

1999
all parties, without waiting for a
discovery request, to provide the following
information which may be used to support its claims
or defenses:
(1) potential witnesses
(2) damages
(3) insurance
Unless the court directs or the parties stipulate, the
disclosure must take place within 10 days after the
parties meet to prepare a discovery plan.
7
Initial Disclosure

Assume that Albert sues Boutwell in federal court.

Albert’s complaint is similar to Standard Federal Form
9. Albert alleges that on a certain date in a certain
location, Boutwell “negligently drove a motor vehicle
against plaintiff who was then crossing said highway.”
Albert also alleges that “as a result plaintiff was
thrown down and had the plaintiff’s leg broken and
was otherwise injured, was prevented from transacting
business, suffered great pain of body and mind, and
incurred expenses for medical attention and
hospitalization” in the sum of $100,000.

8
Initial Disclosure

•How each category of damages (medical and

hospital expenses, loss of wages and pain and
suffering) was calculated;
•Make available for inspection and copying the
documents or other evidentiary material, not
privileged or protected from disclosure, on which
the calculation is based, e.g., hospital and medical
bills; documentary basis of loss wages;
•any formula used to calculate pain and suffering.
9
 FEDER
AL
Initial
RULE
S OF

CIVIL URE
PROC
ED
Disclosure
1999

Rule 26(a)(1) requires parties to disclose how

they calculated “any category of damages.”
Probably also applies to restitutionary claims
involving money, as well.

10
MANDATORY DISCLOSURE
 The mandatory disclosures are
due within 14 days of the
Conference required by FRCP
26(f).

11
SCOPE OF DISCLOSURE
 FORMER RULE  NEW RULE
 Rule 26(a): “. .  Rules 26(a): Disclose
.disclose information only “. . .information
relevant to disputed that the disclosing
facts alleged with party may use to
particularity in the support its claims or
pleadings.” defenses.”

12
 FEDER
AL
Expert Witness
RULE
S OF

CIVIL URE
ED
Disclosure
PROC

1999
 Later in the process
 Rule 26(a)(2) Expert Witnesses
 Evidence to be used at trial Rule 26(a)(3)
 Rule 26(f) Meet and Confer requirement
 Rule 26(d) bar to traditional discovery
 Controversial
 Rationale: to speed up the process
13
 Relevant Not Privileged

PLAINTIFF DEFENDANT

Depositions
Request to Produce
Interrogatories
Request for Admissions
Physical or Mental
Examination

14
The General Scope of Discovery

Rule 26(b)(1) allows the parties to discover

any non-privileged matter “relevant to the
claims or defenses of any party.”
“Relevant” is now limited to the “claims and
defenses.” The former Rule which
referred to the “subject matter” of the
pending action, was broader.
15
Relevant to Subject Matter

Information is regarded as “relevant to claims

or defenses” if it might reasonably assist a
party in evaluating the case as pled,
preparing for trial, that is obtain admissible
evidence or facilitating settlement.
Admissibility at trial is not required. TEST:
Whether the information sought might
reasonably lead to other evidence that
would be admissible.
16
New Rule on Scope of Discovery Narrower
Attorney-managed

 FORMER RULE  NEW RULE

 FRCP 26(b): A party may  FRCP 26(b): Discovery is
conduct discovery into confined to matters
any matter not privileged, “relevant to the claim or
that is “relevant to the defense of any party.”
subject matter involved in  “For good cause, the court
the pending action.” may order discovery of
any matter relevant to the
subject matter involved in
Broad
the action.”
Attorney-managed
Broader
17
Court-managed
Tension between Rules 8 & 26

FRCP 8(a) “a
short and plain
statement of the
claim”
FRCP 26 (b)(1)
“relevant to the
FRCP 8(b) claim or defense
defenses are to of any party”
be “stated in
short and plain
terms”

18
 RELEVANCE UMBRELLA
The degree of
relevance of
discovery
information is

RE
N T higher when it is
A

LE
V
LE closer in type,

VA
RE CLAIM OR
time or kind to

NT
DEFENSE
the events of the
claim or defense.
TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
KIND SIMILAR SIMILAR

19
 RELEVANCE UMBRELLA

RE
N T
A

LE
V
LE

VA
RE CLAIM OR

NT
DEFENSE

TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
OTHER
KIND INCIDENTS
OF THE
SAME TYPE
20
 RELEVANCE
GOOD UMBRELLA
GOOD
CAUSE CAUSE

RE
N T
A

LE
V
LE

VA
RE CLAIM OR

NT
DEFENSE

TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
OTHER
KIND SIMILAR INCIDENTS SIMILAR
TYPE OF OF THE TYPE OF
SAME TYPE
INCIDENT INCIDENT
21
 RELEVANCE
GOOD UMBRELLA
GOOD
CAUSE CAUSE

RE
N T
A

LE
V
LE

VA
RE CLAIM OR

NT
DEFENSE

TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
OTHER
KIND SIMILAR INCIDENTS SIMILAR
TYPE OF OF THE TYPE OF
SAME TYPE DIFFERENT
DIFFERENT INCIDENT INCIDENT CLAIM OR
CLAIM OR DEFENSE 22
DEFENSE
 RELEVANCE
GOOD UMBRELLA
GOOD
CAUSE CAUSE

RE
N T
A

LE
V
LE

VA
RE CLAIM OR

NT
DEFENSE

TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
OTHER
KIND SIMILAR INCIDENTS SIMILAR
TYPE OF OF THE TYPE OF
SAME TYPE DIFFERENT
DIFFERENT INCIDENT INCIDENT CLAIM OR
CLAIM OR DEFENSE 23
DEFENSE
 RELEVANCE UMBRELLA

RE
N T
A

LE
V
LE

VA
RE My

NT
supervisor
fired me
because of
my race
TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
Other
KIND employees of
the same race
fired by the
same
supervisor 24
 RELEVANCE
GOOD UMBRELLA
GOOD
CAUSE CAUSE

RE
N T
A

LE
V
LE

VA
RE My

NT
supervisor
fired me
because of
my race
TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
Other Other Other
KIND employees in a employees of employees in a
protected class the same race protected class
fired by the fired by the fired by the
same supervisor same same supervisor
supervisor 25
 RELEVANCE
GOOD UMBRELLA
GOOD
CAUSE CAUSE

RE
N T
A

LE
V
LE

VA
RE My

NT
supervisor
fired me
because of
my race
TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
Other Other Other
KIND
Other employees employees in a employees of employees in a Other employees
treated unfairly protected class the same race protected class treated unfairly
by the same fired by the fired by the fired by the by the same
supervisor same supervisor same same supervisor supervisor
supervisor 26
 RELEVANCE
GOOD UMBRELLA
GOOD
CAUSE CAUSE

RE
N T
A

LE
V
LE

VA
RE My

NT
supervisor
fired me
because of
my race
TIME
-10 -8 -7 -6 -5 +5 +6 +7 +8 +10
Other Other Other
KIND
Other employees employees in a employees of employees in a Other employees
treated unfairly protected class the same race protected class treated unfairly
by the same fired by the fired by the fired by the by the same
supervisor same supervisor same same supervisor supervisor
supervisor 27
Scope of “relevance” for
discovery
 FORMER RULE  NEW RULE
 In order to be  “Relevant information
discoverable, need not be admissible at
“information. . .need not
trial if the discovery
be admissible at trial if the
information sought appears reasonably
appears reasonably calculated to lead to the
calculated to lead to the discovery of admissible
discovery of admissible evidence.”
evidence.”
Purpose of change: to clarify that information must be relevant to
be discoverable, even though inadmissible, and that discovery of
relevant material is permitted if reasonably calculated to lead to the
discovery of admissible evidence. 28
Lindberger v. General Motors

56 F.R.D. 433

29
Lindberger v. General Motors

Plaintiff filed an action in US District Court for the

WD of Wisc. on the basis of diversity of
citizenship against GM for personal injuries
caused by defendant’s allegedly negligent
manufacture of a loader. Plaintiff propounded
interrogatory asking for any changes which the
defendant had made in the design of the
braking or warning system since the loader was
first produced.

30
Lindberger v. General Motors

Defendants refused to respond on the ground that the

information was privileged and that it sought
information which would not be admissible at
trial.
HELD: The information sought is relevant to the
subject matter of the action because the feasibility
of installing a better brake or warning system is
relevant to liability.

31
Relevance v. Admissibility

 Assume that Able and Baker were in the vicinity

of an auto accident that is the subject of a lawsuit
by Pauline against Daniel. At Able’s deposition,
Pauline’s attorney asks Abel: “Who did Baker say
was at fault in the accident?”
 Pauline’s attorney expects that Abel will say that
Baker said, “Did you see the way that Daniel ran
that red light?” Daniel’s attorney objects to the
question as calling for “rank inadmissible
hearsay.” Is the question within the permissible
scope of discovery?
32
Relevance v. Admissibility

 Yes. Able’s answer is reasonably

calculated to lead to the discovery of
admissible evidence—
 The testimony of Baker. Thus the
question would be within the
permissible scope of discovery.

33
Relevant to Claims or Defenses

Honda USA sues Chrysler for violation of the

antitrust laws, claiming unfair pricing
policies with regard to its subcompact
automobiles. Honda seeks production
under Rule 34 of all documents relating to
the pricing of all Chrysler vehicles since
1975.

34
Privilege

 Parties
may discover information
which is relevant but not privileged

35
Privilege

 Request for privileged matter goes beyond

the legitimate scope of information to be
obtained during discovery.
 In federal question cases the types of
privileges are governed by federal common
law (as a practical matter federal courts
borrow the privileges of the state in which
is sits).
36
Privilege

In diversity cases privileges are usually

determined under the state law
applicable to the case. However where
discovery is sought from a nonparty
witness who resides in another state,
privileges are determined under the law
of the state where the witness resides.

37
Privilege
Allison sues Bixby for breach of contract. Allison
sends interrogatories to Bixby asking him to state in
detail the contents of all conversations he had about
the requirements of the contract while it was being
negotiated. Bixby had discussed the contract
requirements with his attorney.
 Would Bixby be required to identify his attorney as
a person with whom he had discuss the contract
requirements?
 Would Bixby be required to disclose the contents of
the conversation?

38
Privilege

Types of privileges:
 Attorney-client. Cal Evid. Code 950
 Physician-patient. Cal Evid. Code 990
 Psychotherapist-patient. Cal Evid. Code 1010
 Self-incrimination. US Const. Amend V
 Spousal communications. Cal Evid. Code 980
 Clergy-penitent. Cal Evid. Code 1030
 Trade Secrets. Cal Evid. Code 1060
39
Privilege

 Some courts recognize a “self-critical

analysis” privilege-shielding from
discovery internal safety reviews where
companies evaluate the causes of accidents
 Official information privilege.
 States Secrets privilege.

40
Hickman v. Taylor

329 U.S. 495

41
Hickman v. Taylor
 FACTS: A tug boat sank while towing a car float
and five of the nine crewmen drowned. Tug
owner retained an attorney for the inevitable
litigation. The attorney took statements from
survivors and other witnesses.
 ISSUE: Are the contents of statements made by
witnesses to the attorney for a party investigating
the accident privileged from discovery?

42
2/7/1943: tug “J.M.
Taylor sank in 11/26/1943: USDC D. Penn.
Philadelphia
Taylor,
Hickman V Owners 4
2/10/1943: tug owners 3/30/1943: Fortenbaugh T&O Ry.
and insurers retained interviewed others Damages
attorney Fortenbaugh believed to have relevant under the
to defend them against information and made a Jones Act for
potential lawsuits memoranda of what they death due to
told him vessel being
unseaworthy.

3/29/1943: Fortenbaugh 11/26/1944: Pursuant to

privately interviewed and FRCP 33, Hickman
obtained signed propounded interrogatory
3/3/1943: U. S. statements from the to defendants: “State
Steamboat Inspectors survivors whether any statement of
hearing. Testimony of
the members of the
the four survivors
crews . . .” “Attach hereto
recorded and made
exact copies of all such
available to interested
statements …”
parties. 43
 11/26/1943: USDC D. Penn.

Taylor,
Hickman V Owners 4
T&O Ry.
Damages
under the Objection
Jones Act for Privileged!!
death due to
vessel being
unseaworthy.

11/26/1944: Pursuant to
FRCP 33, Hickman
propounded interrogatory
to defendants: “State
whether any statement of
the members of the
crews . . .” “Attach hereto
exact copies of all such
statements …”
44
 11/26/1943: USDC D. Penn.

Taylor,
Hickman V Owners 4
T&O Ry.
Damages
under the Objection
Jones Act for Privileged!!
death due to
vessel being
unseaworthy.

The objection is
11/26/1944: Pursuant to overruled. The
FRCP 33, Hickman defendants are
propounded interrogatory ordered to answer
to defendants: “State the Interrogatories
whether any statement of and produce the
the members of the documents.
crews . . .” “Attach hereto
exact copies of all such
statements …”
45
 11/26/1943: USDC D. Penn. U.S. Court of Appeals 3rd Cir.

Taylor,
Hickman V Taylor,
Owners 4 Hickman V Owners 4
T&O Ry.
Damages T&O Ry.
under the Objection
Jones Act for Privileged!!
death due to
vessel being
unseaworthy.

The objection is
11/26/1944: Pursuant to overruled. The
FRCP 33, Hickman defendants are
propounded interrogatory ordered to answer
to defendants: “State the Interrogatories
whether any statement of and produce the
the members of the documents.
crews . . .” “Attach hereto
exact copies of all such
statements …”
46
U.S. Court of Appeals 3rd Cir.

Taylor,
Hickman V Owners 4
T&O Ry.

The decision of the

District Court is
reversed. The
information is part
of the “work
product of the
lawyer” and hence
privileged from
discovery.
47
U.S. Court of Appeals 3rd Cir.
United States Supreme Court

Taylor,
Hickman V Taylor,
Owners 4 Hickman V Owners 4
T&O Ry.
Petitioner T&O Ry.

Respondent
Certiorari granted to
settle a question which has
been decided in conflicting
ways by the various
circuits.
The decision of the
District Court is
reversed. The
information is part
of the “work
product of the
lawyer” and hence
privileged from
discovery.
48
 Laws and Rules
Regulating Appeals to
the United States
Supreme Court
At common law, when a higher court wanted to review the decision of a lower court,
public board or public officer, it would issue a writ of certiorari. The writ
ordered them to send the record of the proceedings for review and decision whether
it was according to law.

28 USC 1254: “Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods: (1) By writ of certiorari
granted upon the petition of any party to any civil or criminal case,
before or after rendition of judgment or decree”

28 USC 2101(c): “….[A]ny writ of certiorari intended to bring any

judgment or decree in a civil action, suit or proceeding before the
Supreme Court for review shall be taken or applied for within
49
ninety days after the entry of such judgment or decree.”
U.S. Court of Appeals 3rd Cir.
United States Supreme Court

Taylor,
Hickman V Taylor,
Owners 4 Hickman V Owners 4
T&O Ry.
Petitioner T&O Ry.

Respondent
Certiorari granted to
settle a question which has
been decided in conflicting
ways by the various
Are witness statements taken
circuits.
The decision of the
District Court is
by an attorney for a party after
reversed. The a lawsuit has been filed or the
information is part memoranda and mental
of the “work
product of the
impressions of the attorney
lawyer” and hence about those statements
privileged from privileged from discovery by
discovery.
opposing party? 50
 Butdespite
But despitepetitioner’s
petitioner’sfaulty
faultychoice
choiceofof
action,the
action, theDistrict
DistrictCourt
Courtentered
enteredan anorder,
order,
Which discovery rule is apparently
apparentlyunder
underRuleRule34,34,commanding
commandingthe the
involved in this case?? tugowners
tug ownersandandFortenbaugh,
Fortenbaugh,as astheir
theiragent
agent
andcounsel,
and counsel,to toproduce
producethe thematerials
materialsin in
RULE 34: REQUEST FOR PRODUCTION
question.* OF the
DOCUMENTS?
question.* ***But
*Butunder
under circumstances
the circumstances
wewedeem
No. Petitioner did not file a motion
deemititunnecessary
to compel
unnecessary
production ofand
and unwiseunder
unwise
documents
torest
to rest
FRCP 34.
Besides, such a motion could only our decision
ourbedecision upon
directed upon this procedural
this and
to a party procedural
not to a party’s counsel.
irregularity*****The
irregularity *Thebasic
basicquestion
question at atstake
stake
RULE 33: INTERROGATORIES? isiswhether
whetherany anyof ofthose
thosedevices
devicesmay maybe beused
used
totoinquire
inquireinto
intomaterials
materialscollected
collectedby byanan
adverseparty’s
No. Rule 33, can be used to obtain information
adverse party’s counsel
whichcounsel inthe
is solelyin thecourse
within course
the of
knowledge
of of an
attorney, but not information preparedpreparation forpossible
by the party’s
preparation for possible litigation.
attorneylitigation.
after the claim had arisen.

RULE 26: ORAL DEPOSITION?

No. Petitioner could have taken Fortenbaugh’s deposition and attempted to force him to
produce the documents by use of a subpoena duces tecum under Rule 45, but he did not.

51
Hickman v. Taylor

 We agree, on course, that the deposition-discovery

rules are to be accorded a broad and liberal
treatment. Mutual knowledge of all the relevant
facts gathered by both parties is essential to proper
litigation.
 We also agree that the memoranda, statements and
mental impressions fall outside the scope of the
attorney-client privilege and hence are not
protected from discovery on that basis.
52
Hickman v. Taylor

 However, we are dealing with an attempt to secure

(1) the production of written statements of
witnesses * * *
 Rule 30(b) gives the trial judge the requisite
discretion to make a judgment whether discovery
should be allowed as to the written statements
secured from witnesses. But in the instant case
there was no room for that discretion to operate in
favor of the petitioner. No attempt was made to
establish any reason by Fortenbaugh should be
forced to produce the written statements.
53
Hickman v. Taylor

 Petitioner’s counsel frankly admits that he wants

the oral statements only to help prepare himself to
examine witnesses and to make sure that he has
overlooked nothing. That is insufficient under the
circumstances to permit him an exception to the
policy underlying the privacy of Fortenbaugh’s
professional activities. If there would be rare
situations justifying production of these matters,
petitioner’s case in not of that type.

54
Hickman v. Taylor
 Condition: Information collected by an
attorney or other professional representative
prepared in anticipation of litigation is
privileged from discovery unless the party
seeking discovery can show: (1) a
substantial need for the material and (2) an
inability to obtain equivalent material by
other means.
55
 Hickman v. Taylor

 But as to the oral statements made by witnesses

to Fortenbaugh, in the form of his mental
impressions or memoranda, we do not believe
that any showing of necessity can be made
under the circumstances of this case so as to
justify production.

56
Attorney Work Product

The “work product” privilege protects trial

preparation materials which reveal an
attorney’s strategy, intended lines of proof,
evaluation of strengths and weaknesses and
inferences drawn from interviews.
Unlike privileges, the protection for work
product in not absolute. Only qualified
protection is available i.e.., court may order
disclosure under certain circumstances.
57
FRCP 26(b)(3)

 The rule makers

incorporated the
attorney work-
product privilege into
the Federal Rules of
Civil Procedure.

58
 Attorney Work Product

Allison calls her lawyer on her cellular phone

immediately after an accident with Dexter, since she
realizes that it may be important to get information
right away for pursuing legal claims against Dexter.
The lawyer has an investigator go out and take
photographs of the scene of the accident immediately,
including the positions of the cars, skid marks and the
placement of the debris on the road. Dexter does not
retain counsel until some time later, after the accident
scene has been cleaned up. 59
 Relevant Not Privileged

PLAINTIFF DEFENDANT

Depositions
Request to Produce
Interrogatories
Rule 33
Request for Admissions
Physical or Mental
Examination

60
 Interrogatories
FEDER
RULE
AL
S OF
FRCP 33
CIVIL URE
ED
PROC

1999
An interrogatory is a written question
propounded by one party to another party,
who must answer under oath and in writing.
the question may relate to anything within
the permissible scope of discovery and the
answers are admissible to the extent
permitted by the rules of evidence.
61
 Interrogatories

Please state the date, time, place and substance

of every conversation you have had with
regard to the accident which is the subject of
this action, with any person from the time of
the accident to the present including the
names and addresses of each person present
and what was said by each party to the
conversation in chronological order.
62
 Interrogatories

Facts like the date and place of the accident. The

dates, times, places and persons rendering medical
treatment to the plaintiff;
The names of persons who were present during an
incident.
The dates the plaintiff was out of work and things
of that sort.

63
 FRCP 33(c)
AL
FEDER
S OF
RULE
CIVIL URE
ED
PROC

1999

 An interrogatory otherwise proper is not

necessarily objectionable merely because an
answer to the interrogatory involves an opinion or
contention that relates to fact or the application of
law to fact, but the court may order that such an
interrogatory need not be answered until after
designated discovery has been completed or until
a pre-trial conference or other later time. 64
 Relevant Not Privileged

PLAINTIFF DEFENDANT

Depositions
Request to Produce Rule 34
Interrogatories
Request for Admissions
Physical or Mental
Examination

65
 Production of
FEDER
RULE
AL
S OF
Documents &
CIVIL URE
PROC
ED Things
1999

 Rule 34 applies to documents in any form in

which records are kept.
 Electronic records
 Objects
 Entry on 66
 Relevant Not Privileged

Third
Parties
PLAINTIFF DEFENDANT
Rule
30 &
31
Depositions
Request to Produce
Interrogatories
Request for Admissions
Physical or Mental
Examination

67
68
DEPOSITIONS
A deposition is testimony taken before trial,
under oath, subject to cross examination
and preserved in writing. Under certain
circumstances, deposition testimony may be
admissible at trial.

69
Rule 30(b) LIMITS ON
DEPOSITIONS
 30(b)(1) has been amended to clarify that the
general prohibition against instructions not the
answer is not limited to a “party” but also
extends to a “person.” This clarification
prevents, for example, counsel to an
unaffiliated witness from claiming the right to
instruct the witness not to answer.

70
Rule 30(b) LIMITS ON
DEPOSITIONS
 30(d)(2) imposes a presumptive time limit
on each deposition – “one day of seven
hours,” unless otherwise authorized by the
court or stipulated by the parties.

71
PRECLUSION SANCTION
EXPANDED Rule 37(c)(1) was amended
Formerly, Rule 37(c)(1) to expand the sanction of
provided a sanction of automatic preclusion of
automatic preclusion of evidence to apply to
evidence, if information information which should
or materials should have have been provided is
been, but were not, response to formal
disclosed pursuant to discover.
Rule 26(a).
A party that without substantial justification
fails . . To amend a prior response to discovery
as required by Rule 26(e)(2), is not, unless
such failure is harmless, permitted to use as
evidence at a trial, at a hearing, or on a motion
any witness or information not so disclosed. 72
 Relevant Not Privileged

Third
Parties
PLAINTIFF DEFENDANT
Court
Rule 45

Depositions
Request to Produce
Interrogatories
Request for Admissions
Physical or Mental
Examination

73
Deposition of Nonparty
 The attendance of nonparty witnesses at
deposition may be compelled only by service of
a subpoena
 The subpoena may command the nonparty to
produce books and records for inspection and
copying
 The subpoena shall issue from the court for the
district in which the deposition is to be taken

74
Deposition of Nonparty
 The subpoena may be issued by the court
clerk of the district [may be issued in blank]
 Also may be issued by an attorney
authorized to practice in the district where
the action is pending or where the
deposition is to be taken. Rule 45(a)(3)

75
Deposition of Nonparty
 Subpoena is invalid unless accompanied by
witness fees for 1 day’s attendance and
mileage as allowed by law [Statutory
witness fee is currently $40 per day, plus
mileage].

76
Deposition of Nonparty
 Failure to comply with a subpoena without
adequate excuse is contempt of court.
 Contempt proceedings are instituted by
filing a motion for an order to have the
witness show cause why a contempt citation
should not issue.
 A civil contempt trial

77
Less v. Taber Instrument Corp.

53 F.R.D. 645 (W.D. N.Y. 1971); Text

p. 787

78
Less v. Taber Instrument Corp.
Must Teledyne, Inc., a non-party foreign
corporation doing business in the forum
judicial district served with a notice of
corporate deposition and subpoena
command Singleton, Chairman and CEO,
who was based in Los Angeles headquarters
produce Singleton for a deposition in New
York?
79
Less v. Taber Instrument Corp.
The Rules do not suggest that a different principle
applies to discovery from a party corporation than
applies to discovery from a non-party corporation . .
.[However] the court does not choose to depart from
the ordinary rules that a mere witness will not be
required to leave his residence and business and
travel great distances for the convenience of the
parties and that the deposition of a corporation
should be taken at its principal place of business.

80
Place of Deposition
 The place at which a deposition may be
taken depends on whether the deponent is a
party or a nonparty
 Nonparty--subpoena may be served at any
place within the district of the court by which it
is issued or at any place outside of the district
that is within 100 miles of the place of the
deposition

81
Place of Deposition
 Party witness--at any place. Normally a party’s
deposition is taken in the district in which he or
she resides or is employed or has a place of
business. Often the parties stipulate to a
convenient place

82
Deposition Officer
 The deposition must be conducted under the
supervision of an officer authorized to
administer oaths
 The most common practice is to designate
someone who is a notary and certified
shorthand reporter (CSR)

83
 Relevant Not Privileged

PLAINTIFF DEFENDANT

Depositions
Request to Produce
Interrogatories
Request for Admissions
Physical or Mental Rule 36

Examination

84
Requests for Admission
A request for admission is the procedure
where one party can force another party to
admit or deny the truth of any relevant fact
or the genuineness of any relevant
document.

85
Discovery Requiring Prior Court
Order
 Physical or mental exams. Rule 35(a)
 To preserve evidence before a lawsuit is
filed. Rule 27
 Discovery by plaintiff during disclosure
period. Rule 30(a)(2)
 Discovery beyond established limits e.g.
number of interrogatories

86
Discovery Requiring Prior Court
Order
 Substantive limitations e.g. defendant’s
financial condition in diversity case
 Discovery in class actions
 Discovery related to sanction requests

87
 Relevant Not Privileged

PLAINTIFF DEFENDANT

Depositions
Request to Produce
Interrogatories
Request for Admissions
Physical or Mental
Court Examination
Rule 35 Court

88
Physical & Mental Examinations
Rule 35 sets forth the procedure for obtaining
an examination of a person who mental or
physical condition (or blood group) is in
controversy in the action.

89
Schlagenhauf v. Holder

379 U.S. 104 (1964)

90
 Request that
Holder, District Judge: court order
Schlagenhauf is ordered to Schlangenhauf
submit to 9 examinations.
submit to
U.S.D.C. S.D. Indiana mental &
physical
Greyhound examination
(bus owner)
Schlagenhauf
Plaintiffs (bus driver)
(bus passengers) Contract Carriers
(truck owner)
McCorkhill
(truck driver)
National Lead
(trailer owner) 91
 Laws and Rules Regulating Appeals

Writ of mandamus: At common law, upon a clear and indisputable showing

that a lower court has usurped power, disregarded a duty to exercise power or
disregarded a legal duty a higher court would issue a writ of mandamus to the
lower court to show cause why it should not be required to comply with the
law. A petition for a writ of mandamus could be requested interlocutorily
(before a final judgment).

28 USC 1651(a): The Supreme Court and all courts established

by Act of Congress may issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the
usages and principles of law. 92
 United States Supreme Court

Schlagenhauf V. Holder,
(bus driver) District Judge
Petition for writ of certiorari to order Court of Appeals to order
Judge Holder to set aside the order requiring mental and physical
examination because order is invalid under FRCP 35.

Petition denied!

U.S. Court of Appeals, 7th Cir.

Schlagenhauf V. Holder,
(bus driver) District Judge
Petition for writ of mandamus to order Judge
Holder to set aside the order requiring mental and
physical examination. 93
Schlagenhauf v. Holder

 Rule 35 applies to defendants

 Rule 35 only requires that the person to be
examined be a party to the “action,” not that
he be an opposing party vis-a-vis the
movant.

94
Schlagenhauf v. Holder

 As to good cause however, nothing in the

pleadings or affidavit would afford a basis for a
belief that Schlagenhauf was suffering from a
mental or neurological illness warranting wide-
ranging psychiatric or neurological examinations
or internal medical exams.
 Remanded to decide if good cause for vision
exam.

95
 FEDER
RULE
AL
S OF Compelling
Discovery
CIVIL URE
ED
PROC

1999
 Rule 37(a)(2)
 Meet and confer and certification requirement
 Sanctions
 Facts be taken as established
 Claim or defense barred
 Use of evidence barred (See e.g. Doorley)
 Dismissal or judgment (See e.g. Hart )
 attorneys fees (See e.g. Sellon v. Smith) 96
Protective Order
 Protection of the court invoked by the party
against whom the discovery is sought
against harassment
 Rule 26(c)
 Power to limit the scope, means or access to
discovery upon a showing of good cause
 Meet, confer and certification requirement

97
 Relevant Not Privileged

Third
Parties
PLAINTIFF DEFENDANT
Court
Rule
30 &
31
Depositions
Request to Produce Rule 34
Interrogatories
Rule 33
Request for Admissions
Physical or Mental Rule 36
Court Examination
Rule 35 Court

98