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  1. CIVIL PROCEDURE CLASS 17 Professor Fischer Columbus School of Law The Catholic University of America October 16, 2001

  2. WRAP UP OF LAST CLASS • Finished learning about the timing of initial disclosures • Began our study of different party-initiated discovery techniques by learning about depositions (FRCP 27-31) and starting on interrogatories (FRCP 33)

  3. WHAT WILL WE DO TODAY? • Review the discovery technique of interrogatories by doing a hypo • Learn about additional discovery techniques, namely document requests (FRCP 34), physical/mental examinations (FRCP 35), and requests for admissions (FRCP 36) • Learn about discovery sanctions • Discuss Practice Exercise No. 14

  4. HYPO • Having sustained injuries from a household appliance, Betty sues the manufacturer, SuperVac. The required discovery conference and ensuing disclosures occur. Betty then serves 55 interrogatories on SuperVac and 20 interrogatories on Rechts Department Store, which sold her the product. Both SuperVac and Store refuse to answer. Assume the questions are relevant and not privileged. • Must Store answer? Must SuperVac answer? By what, if any, procedural step might Betty induce them to answer?

  5. HYPO • Assume Betty serves 10 interrogatories only on SuperVac and SuperVac answers them. If, at trial, SuperVac wants to take a position contrary to its interrogatory answers, can it do so, or is it bound by the original answers?

  6. CONTENTION INTERROGATORIES • What if the interrogatory seeks an opinion relating to a fact, or the application of law to a fact? Must a party answer? (examples are at p. 379 of Glannon, #s 18-20) • What about an interrogatory asking for a pure legal conclusion? Must this be answered?


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

  9. DOCUMENT REQUESTS: FRCP 34 • How do you request production/inspection of documents, things or property from a party? FRCP 34(a) and (b), See CB p. 1074 • Note “possession, custody or control” requirement for documents; “possession or control” for land : FRCP 34(a) • How do you request a non-party to produce documents & things? FRCP 34(c) , 45 – see Glannon p. 372

  10. RESPONDING TO DOCUMENT REQUESTS • How long does the recipient of the request have to respond? (See 30(b), CB p. 1077) • Can the recipient object? If so, In what circumstances? • How does a nonparty respond to subpoena duces tecum? (See 45(c) (3))

  11. PRODUCTION OF DOCUMENTS • If the recipient of a document request does not object, can she produce the documents in a jumbled mass? If not, how must they be arranged? What is the governing FRCP? • Does the recipient of a document request who agrees to produce documents have to copy them?

  12. HYPO • Randolph files suit for damages against Craven after being injured in an accident with a truck owned and operated by Craven. Randolph has reason to think that Craven’s truck was serviced at Elaine’s Garage and wants to see the service record. Randolph doubts Elaine will produce it voluntarily. What steps can Randolph take to obtain the documents?

  13. FRCP 35: PHYSICAL & MENTAL EXAMINATIONS • When will a court order a party or non-party to be physically or mentally examined? What is the governing FRCP? • What must be included in the motion for an order for a physical/mental examination?

  14. HYPO • Pat is injured in an automobile crash with Dunham. Pat sues Dunham in negligence for damages to compensate her for her injuries. Dunham seeks to have Pat examined by a physician. • 1. Should the court grant permission? • 2. If the exam takes place, is Pat entitled to see a copy of the physician’s report to Dunham?

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

  16. MORE ON PAT & DUNHAM • Rather than move for a physical exam, Dunham’s lawyer in the Rule 26(f) conference suggests that Pat submit voluntarily to a physical exam. If Pat agrees, can Dunham’s lawyer obtain a copy of the report? Can Dunham’s lawyer take the examining doctor’s deposition? What is the governing FRCP?

  17. PAT/DUNHAM • A key witness in Pat’s suit vs. Dunham is Jones, who allegedly saw “everything” that happened from a position of more than 100 feet away. Can Dunham require Jones to take an eye exam? What happens if Jones is an employee of Dunham?

  18. REQUESTS FOR ADMISSION • What is a request for admission? • What FRCP governs requests for admission? • Requests for admission can be seen as much as pleading rules as discovery devices. Why?

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

  20. SCOPE OF REQUESTS FOR ADMISSIONS • For what facts/matters may requests for admissions be validly made? • Can requests for admission include requests for opinions of fact or applications of law to fact? Pure legal conclusions? Whether a document is genuine? • Are there numerical limits on requests for admission?

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

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

  23. HYPO • Greg is injured on a scout outing when he trips on a wire after returning from a late night “raid” on another campsite. He brings suit vs. the Boy Scouts of America, Inc. A young boy tells defense counsel he saw 4 other boys trip over the same wire. Plaintiff serves a notice to admit that 4 boys tripped over the same wire. Must defendant admit that “fact”?

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

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

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

  27. SANCTIONS UNDER RULE 37(b) • Three- step process, if the party seeking discovery believes opponent failed to comply [by failing to make initial disclosure under 26(a), failing to answer an R. 33 interrogatory, failing to answer a R. 30, 31 deposition question, failing to designate under 30(b)(6), fails to respond to R. 34 document request AND that party wants to pursue it. • 1. Informal Conference (37(a)(2)) • 2. Motion to compel (37(a)(2)) • 3. Sanctions for failure to obey an order to compel (37(b))

  28. MOTIONS TO COMPEL • Rule 37(a) • What is a motion to compel? • When should a party file a motion to compel? • What special certification must accompany a motion to compel? • In which court should the moving party file the motion to compel?

  29. SANCTIONS ON MOTION TO COMPEL – 37(a)(4) • What sanctions may be awarded by a court if a motion to compel succeeds? • What orders may be made by a court if a motion to compel is denied? • What orders may a court make if it denies the motion to compel in part and grants it in part?

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

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

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

  33. OTHER SANCTIONS POSSIBLE WITHOUT VIOLATION OF COURT ORDER • Rule 37(c) When can court impose sanctions under this provision, and what types of sanctions? • Rule 37(d) When can court impose sanctions under this provision, and what types of sanctions?

  34. RULE 37(C) (1): AUTOMATIC DISCLOSURES • Failure to make automatic disclosures under 26(a) • Failure to supplement a prior discovery response under 26(e)(2) • Punishment, is that party will not be permitted to use evidence at trial AND on motion and after opportunity for a hearing, court may impose sanctions under 37(b)(2)(A), (B), and (C) as well as payment of reasonable expenses from PARTY only

  35. RULE 37(c)(2): FAILURE TO ADMIT • After trial, party can move for reasonable expenses including attorney fee from PARTY only • These must be awarded UNLESS • Request objectionable • Admission sought was trivial • Reasonable grounds or good reason for refusing to admit

  36. RULE 37(d): FAILURE OF PARTY TO ATTEND AT OWN DEPOSITION OR SERVE ANSWERS TO INTERROGATORIES/RESPOND TO DOCUMENT REQUEST • These are sanctions for completely failing to participate in the discovery process • They are obtainable on motion • Must informally confer with other party/person before moving (except for failing to appear for deposition) • Court can impose whatever sanctions are “just” including 37(b)(2)(A)-(C) as well as reasonable expenses including attorney’s fees

  37. 37(g): Failure to participate in discovery plan • If a party fails to participate in developing a proposed discovery plan as required by 26(f), the court may, after opportunity for a hearing, require the party failing to participate to pay expenses of the other party including reasonable attorney fee caused by the failure

  38. PRACTICE EXERCISE 14 • Discovery planning in Carpenter • See CB 356-358 • Initial disclosures • Depositions – party/nonparty • Interrogatories • Document Requests • Physical/Mental Exams • Requests for Admission • Sequence of discovery